Sheriff Joe Arpaio’s lawsuit against President Obama’s executive action received a court hearing in Washington, DC yesterday — and all accounts are reporting that the judge, Beryl Howell of the US District Court in Washington, did not seem impressed. As the Washington Post and Politico wrote of the judge’s questioning of Arpaio’s lawyer Larry Klayman:
She pronounced herself “confused” and “puzzled” by his claims. “That doesn’t cut it for me,” she told him, pointing out a “fallacy” in his case and saying, “I fail to see” the applicability of his argument. The judge further told Klayman, “You’ve got a big standing problem.” And when he tried to argue otherwise, she replied: “I really don’t find it at all persuasive. We can move on”…
At one point, Howell even dismissed Klayman’s arguments as suffering from a “logical fallacy,” since the key immigration policy changes Obama announced last month haven’t kicked in yet.
In both this case and last week’s ruling from an activist Pennsylvania judge who found fit to pronounce executive action unconstitutional even though that was irrelevant to his case, at least one thing is consistent: the arguments against executive action are rooted more in right-wing rhetoric than actual legal foundation. Dana Milbank’s takedown of Klayman’s oral arguments highlights claims which more than anything reflect the right-wing conviction that Obama is some kind of tyrant:
Klayman tried to read a long passage from an Obama speech on executive power. “I heard that speech,” Howell told him. “You don’t need to repeat the whole thing.” Instead, she began to pepper him with questions, to which he responded with a series of non sequiturs.
The judge asked how Arpaio could have standing in the case if the supposed injury — death threats against him — predates the executive order. Klayman answered with a speech about how Arpaio is a “client as well as a friend.”
Howell asked how Klayman could show “irreparable harm” if he waited until now to challenge one Obama order issued in early 2012. Klayman answered with a speech about how Obama is “not an emperor.”
Howell asked Klayman why she should intervene on the executive orders. “Doesn’t Congress have the power to step in?”
Klayman wandered into an assertion that under Obama’s executive orders, illegal immigrants “can get the right to vote.” Howell raised her eyebrows, and Klayman rescinded the allegation.
She asked him about similar actions by other presidents. “I’m not sure,” the lawyer conceded. “I haven’t studied the prior ones.”
Klayman’s arguments were all over the lot, and at one point he complained about a $465 fee undocumented immigrants must pay to get “amnesty.” The judge’s droll response: “I take it you’re not here on behalf of undocumented immigrants?”
If all this sounds particularly familiar, it might be because Judge Arthur Schwab, from last week’s Pennsylvania case, included many similar assertions in his heavily criticized ruling finding executive action unconstitutional. From Talking Points Memo:
The judge quoted past statements by Obama suggesting that granting deportation reprieves to more undocumented immigrants would exceed his executive authority. ‘President Obama has stated,’ Schwab wrote, ‘that he is constrained from issuing an Executive Action/Order on immigration because such action would exceed his executive powers…While President Obama’s historic statements are not dispositive of the constitutionality of his Executive Action on immigration, they cause this Court pause.’
Echoing a common Republican argument, the judge suggested that under Obama’s rationale, a future president could instruct the IRS to collect a lower tax rate than established by law and ‘defer prosecution of any taxpayer’ who pays the lower rate.
Executive action, of course, is a long-established presidential power. Every president since Eisenhower has used some form of executive action for immigrants. The Supreme Court has affirmed it. Even conservative legal experts agree that it’s lawful. And the right-wing challenges to it, so far, are not even scratching at its legal merits.