Update: Some think it’s a Backlash: 17 states suing Obama administration over executive amnesty. We don’t think it is a backlash but more of smart and expected move on the chessboard. We’ll say “backlash” when the White House “Immigration Strike Team” stumbles and bumbles as they surely will and Americans get angrier at the latest Obama bungle.
This is what we have been waiting for. A lawsuit against Obama’s illegal illegal immigration executive diktat. As with ObamaCare, Obama “blew it” (just ask Chuck Schumer) on illegal immigration too and the white working class is watching.
Late yesterday there was a surprise from an unexpected quarter against Obama’s illegal illegal immigration executive diktat. Late yesterday there was also the filing of the lawsuit. Let’s take a looky-see.
First, the surprise. The surprise comes from the Obama bootlickers who comprise the Washington Post Editorial Board:
By Editorial Board
THE WHITE House has defended President Obama’s unilateral decision to legalize the presence of nearly 4 million undocumented immigrants as consistent, even in scope, with the executive actions of previous presidents. In fact, it is increasingly clear that the sweeping magnitude of Mr. Obama’s order is unprecedented.
Central to the administration’s argument is its contention that the 4 million covered by the president’s order — some 36 percent of the estimated undocumented population of 11 million — is in line with the percentage covered by a comparable action by President George H.W. Bush in 1990. [snip]
However, as The Post’s Glenn Kessler has scrupulously reported, there is every reason to believe that the estimate is wildly exaggerated and based mainly on what appears to have been a misunderstanding at the time. [snip]
This is not a game of gotcha; facts matter — even in Washington — and so do the numbers. Under close scrutiny it is plain that the White House’s numbers are indefensible. It is similarly plain that the scale of Mr. Obama’s move goes far beyond anything his predecessors attempted. [snip]
Republicans’ failure to address immigration also does not justify Mr. Obama’s massive unilateral act. Unlike Mr. Bush in 1990, whose much more modest order was in step with legislation recently and subsequently enacted by Congress, Mr. Obama’s move flies in the face of congressional intent — no matter how indefensible that intent looks.
The Washington Post editorial was published before the filing of a lawsuit against Obama’s illegal illegal immigration executive diktat. It could not have come at a better time for those concerned about constitutional order and the rule of law.
Two weeks previously the Washington Post published an article about the Kansas Secretary of State Kris Kobach and the potential grounds for a lawsuit against Obama’s illegal illegal immigration diktat:
Governors have been texting his cellphone and Senate staffers have been sending e-mails, and everyone is asking Kobach a version of the same question:
Can he beat this? [snip]
“Unbelievable,” he says, listening to Obama explain the basics of his plan to defer action for up to 4 million illegal immigrants, and when Obama says he will no longer deport people who have “played by the rules,” he begins writing notes.
“Illegal means not playing by rules,” he writes.
“Huh?” he writes when Obama explains his reasons for acting alone. “You have NO AUTHORITY!” [snip]
“Imperial, executive amnesty,” he says. “The sacrificial shredding of our Constitution.”
Kobach is exactly right. He is also right in that congressional action is not the proper route yet to fight Obama’s illegal illegal immigration executive diktat. The fastest road and the one likely to be paved with success is a lawsuit filed by a state or states:
The other option is a lawsuit filed by states and U.S. Immigration and Customs Enforcement agents against the federal government. “That one’s on me,” he says. He tells the group he has already begun drafting a suit as the lead attorney, with plans to file it in early December. Texas is interested in being a plaintiff. So are a few other states.
“Either we win this way or we lose big,” Kobach says. “If that happens, all of these illegal aliens will be eligible to feed at the trough filled by hardworking American people.” [snip]
He went from being a champion high school debater, to graduating summa cum laude in his class at Harvard, to rowing for Oxford, to editing the Yale Law Journal.
“I believe in rules and fairness,” he says, and those are among the reasons he says he was attracted to immigration law in the first place. In what other kind of law was the legal conclusion so obvious? “Illegal alien,” he says. “We can argue it a million ways, but really, what more is there to say?” [snip]
“Heartless,” he says. “I get that one a lot. But I have compassion for the taxpayers who are supporting these people. I have compassion for our citizens who are unemployed. Every time an illegal alien gets a job, that’s a job that probably would have gone to an American at the bottom of the economic ladder. So, yes, of course I might feel badly for an illegal alien. But feeling is not the end of the inquiry.”
Kobach is most concerned about “the constitutionality of this”. As of two weeks ago he already had up to 50 pages of the lawsuit written. As he put it “We have a clear violation here of Article 2, Section 3.” The question that Kobach has an answer to besides the legal violations is the question of standing:
The key to his lawsuit is finding the right plaintiffs, he says, so he has spent the last weeks compiling a list of more than a dozen ICE agents who he says are eager to file suit. They were hired and trained to enforce the country’s immigration laws, and now, he says, they believe that the president is essentially asking them to break those laws. Kobach also wants at least one state to be a plaintiff, likely Texas and possibly others. States are “lining up to sue this time,” he says. He could file one lawsuit on behalf of several states, which he thinks might have the best chance of reaching the Supreme Court. Or he could file individual lawsuits, one for each state, and force the issue into several federal court districts.
Either way, his chances hinge on the same issue that has plagued many of his previous immigration cases: He will have to prove the plaintiffs have standing to sue by showing they have suffered credible, personal injury because of Obama’s executive action. He thinks Texas, with an estimated 1.7 million illegal immigrants, might be his best chance. “The numbers there are good for us,” he says. “Illegal-alien households with kids consume a lot of resources: K-through-12 education, food stamps, earned income tax — these things add up.”
He will likely have a few supporting attorneys with him on the case, but on this day in his Topeka office, he is managing the lawsuit alone. The questions come by e-mail from prospective plaintiffs, governor’s offices and think tanks in Washington: Who will pay the legal fees for the case? In which district will he file? How early in December? Are the plaintiffs ready to withstand the scrutiny of a case that is likely to unfold over two or three grueling years?
17 states sue to block Obama immigration order
Seventeen states filed a joint lawsuit in federal court Wednesday to try blocking President Barack Obama’s executive order on immigration.
Texas Attorney General Greg Abbott, the Republican governor-elect, took the lead, filing the suit in the Southern District of Texas.
Other states joining are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Utah, West Virginia and Wisconsin.
“The President is abdicating his responsibility to faithfully enforce laws that were duly enacted by Congress and attempting to rewrite immigration laws, which he has no authority to do — something the President himself has previously admitted,” Abbott said in a statement. “President Obama’s actions violate the Take Care Clause of the U.S. Constitution and the Administrative Procedure Act, which were intended to protect against this sort of executive disregard of the separation of powers.” [snip]
This new lawsuit also argues that the DHS directive required public notice and a comment period that didn’t occur.
The Attorney General of Texas, soon to be Governor of Texas provided more details:
Abbott, in a news conference in Austin, said the “broken” immigration system should be fixed by Congress, not by “presidential fiat.”
He said President Obama’s recently announced executive actions — a move designed to spare as many as 5 million people living illegally in the United States from deportation — “directly violate the fundamental promise to the American people” by running afoul of the Constitution.
“The ability of the president to dispense with laws was specifically considered and unanimously rejected at the Constitutional Convention,” he said.
Abbott specifically cited Article 2, Section 3 of the Constitution which states the president “shall take care that the laws be faithfully executed.”
He said the lawsuit asks the court to require Obama to go through Congress before enforcing laws, “rather than making them up himself.” [snip]
The lawsuit raises three objections: that Obama violated the “Take Care Clause” of the U.S. Constitution that limits the scope of presidential power; that the federal government violated rulemaking procedures; and that the order will “exacerbate the humanitarian crisis along the southern border, which will affect increased state investment in law enforcement, health care and education.”
[See interview with Texas Attorney General Abbott at link.]
The lawsuit wisely states in its second paragraph, “This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution. ”
That’s exactly right. There are some other very smart moves by the litigant states:
“This lawsuit is not about immigration. It is about the rule of law, presidential power and the structural limits of the U.S. Constitution,” the governors said in a 75-page complaint, filed in federal district court in Texas.
The governors said they have standing to sue because they and their state taxpayers will be left on the hook for expenses related to schooling, health care and police to handle the extra illegal immigrants who will now have federal permission to stay in the U.S. despite having no permanent lawful status.
And the plaintiffs carefully chose the court where they filed their challenge, selecting Brownsville, Texas, where a judge last year wrote a scathing rebuke of Homeland Security for aiding human smugglers.
The new lawsuit, which was spearheaded by Texas Attorney General Greg Abbott, repeatedly uses Mr. Obama’s own words against him, pointing to the nearly two dozen times he said he didn’t have the power to take the actions he took.
And in one critical attack, the lawsuit points to Mr. Obama’s own claim last week that he “took an action to change the law.”
“In this case, the president admitted that he ‘took an action to change the law.’ The defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100 percent is a de facto entitlement — one that even the president and OLC previously admitted would require a change to the law,” the challengers said in their complaint. [snip]
The challengers also chose a Texas court where Judge Andrew S. Hanen last year blasted the Homeland Security Department for what he said amounted to aiding smugglers.
He said he’d come across several cases where illegal immigrant children had been smuggled into the U.S. and caught, only to have Homeland Security agents close the smuggling loop by delivering the children to their illegal immigrant parents already in the U.S.
“Instead of enforcing the laws of the United States, the government took direct steps to help the individuals who violated it. A private citizen would, and should, be prosecuted for this conduct,” the judge wrote.
Why do we think this lawsuit is the way to go? First, congressional action by the GOP this year is symbolic at best because the Harry Reid/Obama Senate will not pass legislation to stop Obama’s illegal illegal immigration executive power grab. It’s best for opponents of Obama’s illegal illegal immigration executive diktat to act once the new congress begins and Republicans are in control of both houses of congress.
To wait until next year however means that wheels will begin to turn and Obama’s diktat might begin to produce real harm as illegal immigrants see an open road for them to ride on. Which brings us to our most important consideration. The second reason for why this lawsuit is the way to go is: illegal immigrants are not stupid.
Illegal immigrants are not stupid. Few will risk trust in Obama when faced with the fact that Obama’s cheesy political ploy will expire once Obama is out of office. Even fewer illegal immigrants will trust Obama’s illegal illegal executive action now that they know that there are lawsuits which challenge Obama’s illegal illegal immigration executive diktat.
Illegal immigrants are canny and play their cards very close to the vest. Illegal immigrants are not about to expose themselves to potential deportation based on what Boob Obama for the moment says or does. Just like American citizens, foreign leaders, children, dogs, and anyone with a lick of sense, illegal immigrants know:
Obama simply cannot be trusted. Obama cannot be trusted on any issue. Obama cannot be trusted by his friends. Obama cannot be trusted by his foes. Obama cannot be trusted.
Illegal immigrants will now wait to see how these lawsuits play out before they raise their heads into a potential trap of whack-a-mole. Illegal immigrants will do a cost/benefit analysis and see that potentially they are putting their names into a deportation list if they rely on Obama’s word.
Illegal immigrants will also understand that by staying quiet until things play out in the courts and in 2016 they can watch and wait from their ensconced positions and not put themselves at risk – they will be no worse off and in less danger if things go badly for them in the courts or in the electoral arena. Obama and activists like Gutiérrez, who are in no danger, will exhort illegals to put themselves out to danger but illegal immigrants will not endanger themselves for the benefit of Obama and the Obama Dimocrat activists.
The government will have to respond to the lawsuit in about two weeks. Expect comedy.