Freedom Line Blog

Last week Kansas Secretary of State Kris Kobach filed a lawsuit on behalf of 10 Immigration and Customs Enforcement agents challenging President Barack Obama’s “deferred action” program.

In a recent column I explained how the President’s decision to instruct federal law enforcement not to enforce relevant immigration law is giving some state governments an excuse to further legitimize illegal immigration.

Now the Heritage Foundation is out with an issue brief analyzing the prospects of the ICE agents’ lawsuit.  It doesn’t look good:

The plaintiffs will have a tough row to hoe, regardless of how abusive this new initiative may be in terms of violating the spirit—if not the letter—of the Constitution’s separation of powers, as well as the executive’s obligation to “take Care that the Laws be faithfully executed.” Although the challenge is by no means frivolous, a court may be reluctant to conclude that the plaintiffs have standing.

Even if they are able to establish an “injury in fact,” a court may be tempted to cite prudential standing rules in order to avoid reaching the merits, and to avoid encouraging federal officials to defy orders of their supervisors as a prelude to challenging the legality of those orders in court. As the Supreme Court stated in Gladstone, Realtors v. Village of Bellwood (1979), “a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.”

Key Takeaway: This is a political issue that requires a well thought out policy solution.  Paul Ryan dedicated his career thus far to making the conservative case for budget and entitlement reform.  It’s time for another enterprising Member of Congress to do the same with immigration reform.

Just days after the California DMV announced it might use the Obama Administration’s “deferred action” program to grant driver’s licenses to illegal immigrants, a group of Immigration and Customs Enforcement officers are suing to kill it.

From Huffington Post:

Arizona immigration law author and Kansas Secretary of State Kris Kobach is representing 10 immigration agents in a lawsuit filed Thursday against Homeland Security Secretary Janet Napolitano, for policies they say prevent them from doing their job of defending the Constitution.

“They’re being ordered by their federal-appointee superiors to break federal law, or if they don’t break federal law, according to their orders they will be disciplined,” Kobach said Thursday on a call with reporters. “This is an absolutely breath-taking assertion of authority and an abuse of authority.”

The complaint’s six causes of action give you a flavor of what Kobach means:

1. The Directive Expressly Violates Federal Statutes Requiring the Initiation of Removals
2. The Directive Violates Federal Law By Conferring a Non-Statutory Form of Benefit, Deferred Action, to More than 1.7 Million Aliens, Rather Than a Form of Relief or Benefit that Federal Law Permits on Such a Large Scale
3. The Directive Violates Federal Law by Conferring the Legal Benefit of Employment Authorization Without Any Statutory Basis and Under the False Pretense of “Prosecutorial Discretion”
4. The Directive Violates the Constitutional Allocation of Legislative Power to Congress
5. The Directive Violates the Article II, Section 3, Constitutional Obligation of the Executive to Take Care That the Laws Are Faithfully Executed
6. The Directive Violates the Administrative Procedure Act Through Conferral of a Benefit Without Regulatory Implementation

As CFIF reported, there is more to Kris Kobach than being the principal drafter of the Arizona’s illegal immigration law SB 1070.  Last night, Kobach secured the Kansas Republican Party’s nomination for Secretary of State.  The accomplishment makes him likely the highest profile SOS candidate in the country, and is sure to put election law-related issues at the forefront of the midterm elections.  First up on Kobach’s agenda?  Requiring all voters to provide a photo ID when casting a ballot.

Stay tuned.

Rising conservative Kris Kobach lays out a succinct analysis that puts to rest any notion that the Obama Administration has any legal justification for suing Arizona over its tough new illegal immigration law, and concluding with the only plausible explanation:

But even if one were to imagine that the Obama administration had a strong legal argument, there would be yet another reason not to file the lawsuit: It is completely unnecessary. Five suits have already been filed by the ACLU and their fellow travelers. The issue is already teed up for the federal courts to decide. The administration achieves nothing by launching its own litigation. Except, of course, for rallying the Democrats’ open-borders base before the 2010 elections.

In a previous part of his National Review Online entry Kobach shows that every federal appeals court who’s considered the issue “support the authority of Arizona to enact its law.”  Since the lawsuits arrayed against SB 1070 are almost guaranteed to fail, it will be interesting to see how many open-borders supporters will convince themselves that the Administration’s ploy is worth the bother.