Sheriff Joe Arpaio can’t sue the Obama administration to stop the president’s deportation amnesty, a federal appeals court ruled Friday in a decision saying it was too tenuous to try to argue that the amnesty will entice other illegal immigrants to try to make the crossing.
The ruling marks a legal victory for Homeland Security — albeit a narrow one, because the U.S. Circuit Court of Appeals for the District of Columbia didn’t reach the actual substance of the president’s tentative amnesty program, instead saying the Maricopa County, Ariz., sheriff didn’t prove he was harmed by the amnesty.
Sheriff Arpaio has argued that the newest amnesty, which Mr. Obama announced in November, would entice many more illegal immigrants to come to the U.S., adding to his workload as sheriff in a massive county near the border.
But the three-judge panel rejected that as “unduly speculative.”
“For the harms Sheriff Arpaio alleges to occur and be redressable by the injunction he seeks, aliens abroad would have to learn about the deferred action policies, mistakenly think that they were eligible to benefit from them, or harbor a hope of becoming eligible for future, similar policies as yet unannounced, actually leave their homes and enter the United States illegally based on that false assumption, commit crime in Maricopa County, become involved in — and costly to — the criminal justice system there, and be less likely under deferred action to be removed from the United States than they would have been without those policies in place,” Judge Nina Pillard said in the majority opinion.
The White House cheered the ruling, claiming it was a victory for the amnesty.
Mr. Obama is claiming the power to halt millions of deportations and grant those illegal immigrants work permits and Social Security numbers, saying he was unlikely to ever deport them anyway under his powers of prosecutorial discretion.
“As the district court properly observed, the deferred action programs that Sheriff Arpaio challenged represent the ’valid exercise of prosecutorial discretion,’ ” spokesman Eric Schultz said. “We will continue to work toward resolving the legal challenges so that the administration can move forward with implementing all of the president’s commonsense immigration policies.”
The amnesty has already been put on hold by a federal judge in Texas, and another appeals court in New Orleans is grappling with an appeal in that case.
The judges in that case, in an earlier ruling, had found Texas and 25 other states did have standing to sue because the amnesty would add potentially hundreds of thousands of new people able to seek driver’s licenses or other public benefits, which are quantifiable costs — thus they were able to prove a harm where Sheriff Arpaio was not.
In a concurring opinion Friday, Judge Janice Rogers Brown said the court shouldn’t be ducking the big constitutional questions raised by Mr. Obama’s executive actions on immigration — though she agreed with her colleagues that their own precedent did prevent Sheriff Arpaio from being able to challenge the president.
Judge Brown, perhaps with an eye toward the Texas case, said that if Sheriff Arpaio had been representing a state, he probably would have had standing to sue under an earlier Supreme Court ruling that held Massachusetts was able to sue over government inaction on global warming because of potential changes to its coastline. Instead, in this case, she said Sheriff Arpaio was not afforded the same considerations as a state, nor did he do his “homework” to make the right connections between the amnesty and future illegal immigration.
Still, she said, someone should likely have the ability to challenge presidential actions as unconstitutional — particularly with the amnesty, which she said “arguably crosses the line between implementing the law and making it.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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