Friday, December 19, 2014

Birther Report Sheriff Joe Larry Klayman Fires Back Judge Schwabs Damning Opinion Cited Obama Admits Actions Unlawful

Sheriff Joe Arpaio Fires Back: Judge Schwab's 
Opinion Cited; Obama Admits Actions Unlawful


Attorney Larry Klayman filed a reply to Obama's opposition motion to Sheriff Arpaio's legal challenge seeking to halt Obama's unconstitutional executive immigration actions. For good measure Klayman included U.S. District Court Judge Arthur Schwab's December 16th opinion where he declared Obama's immigration actions unconstitutional.

Excerpts from the blistering motion just filed by Attorney Klayman on behalf of Sheriff Arpaio:




PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION
FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF

I. INTRODUCTION

President Barack Obama announced on November 20, 2014 that he, on his own claimed authority, is granting legal status in the United States and the legal right to work in the United States to approximately 4.7 million nationals of other countries who have entered the country illegally or have illegally remained in the United States. This is in addition to the approximately 1.5 million illegal aliens eligible for President Obama’s prior June 15, 2012, DACA Executive Action.

Among many weaknesses of the Defendants’ Opposition to the Motion for Preliminary Injunction, is that the Defendants’ Opposition and their arguments simply do not relate to the case at bar.

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II. DEFENDANTS HAVE OFFERED NO EVIDENCE OR AFFIDAVITS AND THUS
PLAINTIFF’S AFFIDAVITS AND FACTUAL RECITATIONS ARE UNCONTROVERTED.

The Defendants have not offered any affidavits, declarations or evidence in support of their Opposition to a preliminary injunction. Thus the sworn Declaration of Plaintiff is uncontroverted and must at this stage of the proceeding be accepted as true in any event. As this honorable Court ruled on December 18, 2014, “at this stage of the proceedings, in opposition to the defendants' motion to dismiss, the Court need not make any credibility determinations and must accept as true the factual allegations made by the plaintiff.”

However, the Defendants’ positions in their Opposition to preliminary injunction, in the operative Memoranda orders, and the OLC legal opinion depend extensively upon unsupported assertions of facts and effects that they contend will or will not occur. The majority of Defendants’ Opposition consists of simply arguing “I don’t believe it.”

Thus, the Defendants effectively concede the factual allegations of the Plaintiff supported by sworn declarations.

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III. STANDARD OF REVIEW AND GOVERNING LAW

Plaintiff set forth the standard of review and governing law for a preliminary injunction in his motion. Specifically, the following governing law relates to the initial issue of standing:

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IV. STANDING MANDATED BY ALLEGATIONS TAKEN AS TRUE

In addition to Plaintiff’s sworn affidavit attached to his motion, the allegations of the Complaint in paragraphs 27 through 32 must be taken as fact for the present purposes of a FRCP Rule 12(b)(1) challenge to standing. Furthermore, pursuant to the Court’s order granting leave to file an amended affidavit, Sheriff Arpaio will submit on December 19, 2014, a further affidavit making the following supplemental recitation of non-conclusory and actual fact:

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V. DEFENDANTS’ CHALLENGE TO PLAINTIFF’S STANDING

Defendants futilely challenge standing by the Plaintiff on the following meritless grounds:

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VI. DEFENDANTS DID NOT OPPOSE WHAT PLAINTIFF SEEKS:
DEFENDANTS’ PROGRAMS ARE NOT ENFORCEMENT DISCRETION

Defendants extensively brief and argue the case as grounded only on the Executive Branch’s inherent authority to engage in enforcement discretion.

Fatal to the Defendants’ argument, however, is the reality that Defendants June 2012 DACA and November 2014 Executive Action Amnesty are not exercises of prosecutorial discretion.

As analyzed and explained by U.S. District Judge Arthur J. Schwab, in United States v. Elionardo Juarez-Escobar, in the United States District Court for the Western District of Pennsylvania (Criminal Case No. 14-0180, December 16, 2014), Defendants’ Executive Actions do not qualify as prosecutorial discretion or enforcement discretion. See, Exhibit A, attached.

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VII. DEFENDANTS PROGRAMS ARE UNCONSTITUTIONAL OR UNLAWFUL:
DEFENDANTS ADMIT THAT PROGRAMS ARE UNLAWFUL

As Plaintiff briefs already in the Motion, the Executive Branch has no authority to set policy in this area, as Defendants claim. As further analyzed and explained by U.S. District Judge Arthur J. Schwab, in United States v. Elionardo Juarez-Escobar, in the United States District Court for the Western District of Pennsylvania (Criminal Case No. 14-0180, December 16, 2014), the Defendants’ programs are unconstitutional. Judge Schwab ruled that:

President Obama contended that although legislation is the most appropriate course of action to solve the immigration debate, his Executive Action was necessary because of Congress’s failure to pass legislation, acceptable to him, in this regard. This proposition is arbitrary and does not negate the requirement that the November 20, 2014 Executive Action be lawfully within the President’s executive authority. It is not.

“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” Youngstown, 343 U.S. at 587.

Congress’s lawmaking power is not subject to Presidential supervision or control. Youngstown, 343 U.S. at 587. Perceived or actual Congressional inaction does not endow legislative power with the Executive. This measurement - - the amount/length of Congressional inaction that must occur before the Executive can legislate - - is impossible to apply, arbitrary, and could further stymie the legislative process.

President Obama stated that the only recourse available to those members of Congress who question his wisdom or authority in this regard would be to “pass a bill” and that “the day I sign that bill into law, the actions I take will no longer be necessary.” Presidential action may not serve as a stop-gap or a bargaining chip to be used against the legislative branch. While “the power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration,” it does not include unilateral implementation of legislative policies. Utility Air Regulatory Group v. E.P.A.,134 S.Ct. 2427, 2446 (Jun. 23, 2014).

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VIII. PAST DEFERRED ACTION DOES NOT MAKE DEFERRED ACTION LEGAL

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IX. IN THE UNLIKELY EVENT THAT PRESIDENT OBAMA’S SO-CALLED EXECUTIVE ACTIONS ARE NOT DEEMED UNCONSTITUTIONAL, WHICH IT UNDOUBTEDLY IS, PRESIDENT OBAMA AND THE OTHER DEFENDANTS ACTED IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT (APA) THROUGH WHAT IN EFFECT AMOUNTS TO HIS ILLEGAL RULE-MAKING.

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X. THE EXECUTIVE ACTIONS AND MEMORANDA ARE NOT GENERAL STATEMENTS OF POLICY BUT ARE RULE-MAKING AND NOT POLICY.

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a. President Obama’s In Effect Illegal Rule-Making Violates Federal Law Because Notice Of The Rule-Making Should Have Been Published In The Federal Register For Public Comment, As It Affects A Wide Swath Of People And Businesses, And The Substantive Rule Was Not Published At Least Thirty Days Before Its Effective Date.

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b. President Obama Violated APA, 5 U.S.C. § 706 Because His In Effect Illegal Rule-Making Conflicts With Congressional Law.

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XI. DEFENDANTS’ EXECUTIVE ACTIONS AND MEMORANDA ORDERS CONFLICT WITH CONGRESSIONAL ENACTMENTS

a. Congressional Law on Detention and Removal of Illegal Aliens

b. Congressional Law On Undocumented Parents Of U.S. Citizen Or Legal Permanent Residents.

c. Defendant’s Memoranda Orders Are Not “In Accordance With” The Laws Enacted By Congress.

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XII. EVEN IF THERE WAS PROPER NOTICE-AND-COMMENT RULE-MAKING, WHICH THERE WAS NOT, A RATIONAL BASIS FOR THE SUBSTANTIVE RULE DOES NOT EXIST.

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XIII. A MULTITUDE OF POLICY CONSIDERATIONS WARRANT THE INVALIDATION OF PRESIDENT OBAMA’S IRRATIONAL SO-CALLED EXECUTIVE ACTIONS AND EVEN IF THE EXECUTIVE ACTIONS AT ISSUE ARE POLICY, WHICH THEY ARE NOT LEGALLY, THERE IS NO RATIONAL BASIS FOR THEM.

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XIV. CONCLUSION


[...] - Complete court filing continued below or here.