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Challenges to Immigration Executive Action About Politics & Headlines, Not the Law

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It’s increasingly clear that various legal challenges to President Obama’s executive actions on immigration are more about politics and generating headlines than actual constitutional considerations. 

Yesterday, Judge Beryl Howell of the U.S. District Court for the District of Columbia heard the first legal challenge directly about the constitutionality of the President’s recent immigration executive actions, in a lawsuit brought by Arizona’s notorious anti-immigrant Sheriff Joe Arpaio and argued by “conservative gadfly” Larry Klayman.  As Washington Post columnist Dana Milbank writes, Judge Howell was “confused” and “puzzled” by the lawsuit and Klayman’s arguments, noting, “That doesn’t cut it for me,” and highlighting the “fallacy” of his legal reasoning, while also telling Klayman, “You’ve got a big standing problem” and “I really don’t find it at all persuasive.  We can move on.”  Needless to say, yesterday did not seem to go well for the plaintiff in regards to the merits of their legal challenge. 

However, Klayman and Arpaio seem less concerned about making persuasive legal arguments and more concerned about making political points and generating press on their behalf.  As Milbank captures of yesterday’s proceedings:

 Larry Klayman is losing again.

…But winning isn’t the only thing for Klayman — or much of anything.  He uses litigation as a press strategy: His lawsuits allow him to uncover documents and depose officials, which makes news and gets him headlines.

‘You report more when I file a lawsuit,’ Klayman explained.  ‘It’s like a prizefight.’

Similarly, the lawsuit joined by attorneys general and/or Republican governors in 25 states is also light on actual legal substance and heavy on political posturing.  Not only have those plaintiffs engaged in judge-shopping to find an activist conservative judge to hear the case, but actual legal experts have characterized their suit as “completely political theater” and “a frivolous complaint, not a serious lawsuit.”

According to Lynn Tramonte, Deputy Director of America’s Voice:

The plaintiffs and lawyers filing these lawsuits are using the courts as a political theatre.  Their written briefs are press releases masquerading as legal arguments, and their hearings are taxpayer-funded press conferences, not substantive debates.  This is an insulting abuse of the judiciary, and it will also backfire on the Republican Party politically.  Pursuing these frivolous lawsuits against President Obama’s immigration policies will ensure that the cases remain in the news for months and years to come, driving home the message that the GOP is firmly against these American families with immigrant roots.

During yesterday’s proceedings, Judge Howell also called it “a real puzzle” that a Republican-appointed judge in Pennsylvania, Arthur Schwab, last week saw fit to weigh in on the constitutionality of executive action during an individual sentencing case.  Many conservatives and conservative outlets, including those who oppose executive action, join Judge Howell and other legal scholars in questioning the merits, applicability, and legal reasoning behind Judge Schwab’s ruling.  For example, even former George W. Bush administration legal scholar John Yoo, a critic of President Obama’s executive action, thinks Judge Schwab was wrong to “reach out and decide the action’s constitutionality.”  Once again, it was politics, not legal rationale, driving the news. 

Concluded Tramonte:

The Republican ‘legal’ attacks are about politics, not the Constitution.  But they are even getting the politics wrong, failing to recognize they are actually challenging and threatening harm to Latino and immigrant families, not only President Obama.  Those directly affected by executive action, as well as the much larger community of allied voters, are energized and ready to defend the policies  against any and all attempts to block this step forward in their lives.  The political party associated with these attacks on families is clear now, and will remain clear heading into the 2016 elections—Klayman, Arpaio, and the twenty-five states suing the President are making sure of it.