A controversial Arizona sheriff’s challenge to the Obama administration’s immigration policy of deferring deportations seemed to divide a key appellate court Monday.
In a politically sensitive legal battle now raging across several fronts, Maricopa County Sheriff Joe Arpaio’s challenge faced tough questions from two judges but elicited sympathy from a third. The conflict may eventually need resolution from the Supreme Court or the 2016 ballot box.
“This is an extremely important case,” Arpaio’s attorney, Larry Klayman, told the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. “This court cannot allow the executive branch to run roughshod over Congress.”
The self-styled “toughest sheriff in America,” Arpaio has filed one of two legal challenges to the administration’s deferred-deportation program first announced in 2012 and expanded in 2014.
The 2012 Deferred Action for Childhood Arrivals program stopped deportation proceedings against certain immigrants who had arrived illegally in the United States before age 16. The 2014 expansion added more immigrants, including parents of U.S. citizens. Taken together, the actions could shield an an estimated 5 million immigrants from deportation.
Critics call the program an amnesty and say it exceeds the president’s authority. Supporters say it simply exercises prosecutorial discretion and argue the challengers lack the legal standing to be in court.
“This case is not subject to adjudication,” Justice Department attorney Beth Brinkmann told the appellate panel Monday. Klayman’s arguments, she said, “do not cut the mustard.”
In December, U.S. District Judge Beryl A. Howell agreed, throwing out Arpaio’s challenge as a “simple generalized grievance” that relied on “largely speculative” claims instead of the kind of actual injury needed to bring a lawsuit. Howell was appointed by President Barack Obama.
But in February, addressing a parallel challenge brought by Texas and 25 other states, a Brownsville, Texas-based federal judge appointed by President George W. Bush issued a preliminary injunction temporarily blocking the expanded deferred-deportation program announced last year.
In his decision, U.S. District Judge Andrew S. Hanen reasoned that the states, including Florida, Georgia, Idaho, Kansas, South Carolina and North Carolina, had demonstrated they would be harmed, for instance, by having to shoulder the burden of additional driver’s license costs.
On April 17, the New Orleans-based 5th U.S. Circuit Court of Appeals heard oral arguments in the case brought by the 26 states.
Two Obama appointees on the D.C. appellate court, Judges Sri Srinivasan and Cornelia Pillard, sounded skeptical of Arpaio’s legal standing during the extended hour-long oral argument Monday.
Pillard cited a “mismatch” between “the scope of the policies” imposed by Obama and Arpaio’s claims of actual injury, saying at one point that she wanted to “try just one more time” to get a satisfactory answer from Klayman. Srinivasan repeatedly pressed Klayman hard on specific questions, sometimes getting mini-speeches in response.
“The secretary of homeland security does not get to decide whether to enforce the laws or not,” Klayman said at one point, adding at another time that “you can’t have the president making the law.”
Arpaio estimates the deferred deportations cost Maricopa County millions of dollars to incarcerate criminal aliens. Srinivasan countered that the policies “inure to the benefit of non-criminal aliens,” as they are the ones who are allowed to stay in the United States.
While neither Srinivasan nor Pillard seemed persuaded by Arpaio’s case, Judge Janice Rogers Brown respectfully noted Judge Hanen’s decision against Obama’s immigration policy and sounded sympathetic to the border states where concerns arise.
“If we did not make it so attractive,” Brown said at one point, “maybe less people would come.”