Joe Arpaio’s challenge to new amnesty tossed by judge; Congress, not courts, could stop policy

While refusing to overturn President Obama’s amnesty herself, a federal judge said this week that Congress can fight the president by using its power of the purse, pushing the battle back to Capitol Hill.

Judge Beryl A. Howell’s ruling late Tuesday tossed a lawsuit brought by Maricopa County, Arizona, Sheriff Joe Arpaio, finding he wasn’t injured by the amnesty and that he didn’t have standing to sue.

Judge Howell said, however, that Congress has the job of setting immigration enforcement priorities and can tell the president to knock it off — if lawmakers can get a bill passed.

“Should Congress disagree with the enforcement priorities set out by DHS in the challenged policies, Congress has the ability to appropriate funds solely for removal, and the president cannot refuse to expend funds appropriated by Congress,” she wrote in her 33-page opinion, which denied Sheriff Arpaio’s request for an injunction halting the amnesty and instead threw out the lawsuit, acceding to the Obama administration’s wishes.

Mr. Obama’s policy would grant a proactive three-year stay of deportation and work permits to up to 5 million illegal immigrants. It would also halt deportations for most other illegal immigrants, though they would not necessarily be eligible for work permits.

The ruling by Judge Howell, an Obama appointee to the bench, is not likely to be the last word. Larry Klayman, Sheriff Arpaio’s attorney, has filed a notice that he is appealing the case, and another case involving a challenge by two dozen states, filed in federal court in Texas, is still pending.

In documents filed Wednesday in that case, the administration argued courts have no power to review the amnesty, saying judges can’t peek behind the curtain at the president’s discretionary decisions.

Meanwhile, another federal judge in Pennsylvania ruled last week that Mr. Obama’s amnesty was an unconstitutional power grab from Congress — a decision that Judge Howell attacked in her own ruling.

She accused her colleague of trying to “put the proverbial ’cart before the horse’” by ruling against the policy, saying that the Pennsylvania judge, Arthur J. Schwab, seemed to be searching for a reason to overturn the president. She said Judge Schwab never should have reached that far in his legal reasoning.

The two rulings show different readings of Mr. Obama’s policy.

Judge Howell accepted the administration’s argument that the nearly 5 million applicants would be screened on a “case-by-case” basis, which she said meant it was a use of discretion, not a rewrite of the law.

But Judge Schwab found just the opposite. He ruled that Mr. Obama’s policy was so broad it constituted a new immigration enforcement scheme — something only Congress has the power to set.

“President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore is unconstitutional,” Judge Schwab wrote.

Judge Schwab’s ruling came as part of a case involving an illegal immigrant who was charged with illegally reentering the country. The judge did not halt the president’s amnesty, but asked both the government and the illegal immigrant’s lawyers to file briefs on what effect the policy should have on the man.

In the D.C. case, Sheriff Arpaio wasn’t present during oral arguments Monday, but Mr. Klayman, his lawyer, seemed to suffer in a rough session before Judge Howell.

At one point the judge said Mr. Klayman had a logical fallacy in his argument that there was an urgent new harm to the sheriff while simultaneously protesting the president’s 2012 deportation amnesty for so-called Dreamers, as well as Mr. Obama’s new broader Nov. 20 policy. The judge said the sheriff has lived with that Dreamer policy for more than two years without showing a specific harm.

Judge Howell also repeatedly urged Mr. Klayman to stick with legal arguments when she felt he was drifting into political attacks.

The White House claimed vindication in Tuesday’s ruling, saying it was proof the president acted within his powers.

“Judge Howell’s decision today confirms what the Department of Justice and scholars throughout the country have been saying all along: The president’s executive actions on immigration are lawful,” said White House spokesman Eric Schultz.

Still, the judge’s ruling lays the groundwork for Congress to challenge Mr. Obama.

Congressional Republicans have called on their leaders to use the annual Homeland Security spending bill as leverage to try to halt the amnesty. Under the terms of this month’s budget deal, Homeland Security funding is up for renewal Feb. 27, and the conservatives want that bill to include language banning the president from following through on his amnesty.

In her decision, Judge Howell said Congress has that authority.

That contradicts the claim by the House Committee on Appropriations that it could have trouble forcing Mr. Obama’s hand since the agency that would carry out his amnesty, U.S. Citizenship and Immigration Services, is funded by fees.