Federal Judge Dismisses Lawsuit Challenging Obama’s Immigration Executive Action

A Federal Judge has dismissed the first lawsuit filed against President Obama's immigration "executive action."


Shortly before the Christmas holiday began, a Federal District Court Judge in Washington, D.C. tossed out a lawsuit filed by Maricopa County, Arizona Sheriff Joe Arpaio over President Obama’s recently announced changes to deportation policies:

President Barack Obama’s executive actions on immigration survived their first major court test Tuesday, when a federal judge tossed out a lawsuit claiming the president exceeded his constitutional power.

U.S. District Judge Beryl Howell dismissed a challenge brought by Arizona Sheriff Joe Arpaio and backed by conservative legal activist Larry Klayman. Howell ruled that Arpaio had not shown the direct harm from Obama’s actions needed to institute a lawsuit in the federal courts.

“The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury — not to engage in policymaking better left to the political branches,” Howell wrote in an opinion filed Tuesday night. “The plaintiff’s case raises important questions regarding the impact of illegal immigration on this Nation, but the questions amount to generalized grievances which are not proper for the Judiciary to address.”

The ruling came just one day after Klayman, Arpaio’s lawyer, presented a colorful argument laced with political barbs at a hearing that extended to more than an hour. During the session, Howell — an Obama appointee — shot several quizzical looks at the well-known lawyer and made a series of pointed remarks suggesting she was highly skeptical of his arguments.

The lawsuit challenged a policy Obama implemented in 2012 deferring deportation of individuals brought to the U.S. illegally as children, as well as two moves the administration announced last month: expanding that program and instituting a broader deferred deportation program for illegal-immigrant parents of U.S. citizens. Both programs will soon carry the possibility of three-year reprieves from deportation, along with work permits.

White House spokesman Eric Schultz hailed the judge’s ruling.

“Judge Howell’s decision today confirms what the Department of Justice and scholars throughout the country have been saying all along: the President’s executive actions on immigration are lawful,” Schultz said in a statement. “The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and the actions announced by the President are consistent with those taken by administrations of both parties for the last half century.”

Arpaio and Klayman immediately appealed the ruling to the U.S. Court of Appeals for the D.C. Circuit.

“It’s a weak decision,” Klayman said in an interview late Tuesday. “We’re confident that we’ll win in the end.”

In striking down the lawsuit, Judge Howell hit upon many of the themes that are likely to be an issue in other similar litigation going forward:

In her 33-page ruling Tuesday, Howell concluded that Arpaio’s suit failed on several grounds, including showing a “particularized” harm and demonstrating that the judge had the power to redress whatever problems Obama’s policy changes were creating for the sheriff.

Howell said Arpaio’s central argument — that his county was incurring greater costs due to the Obama immigration actions — might well be flawed.

“Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect,” the judge wrote.

The deferred action programs are designed to incorporate the Department of Homeland Security’s enforcement priorities “and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes,” she wrote. “Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.”

Howell also said it was difficult to predict the actions of immigrants and to establish the connection between those actions and Obama’s immigration policy changes.

“The motivation for any individual to come to the United States (or, once present here, to commit a crime in Maricopa County), does not rest solely upon the challenged deferred action programs. Such decisions are complicated and multi-faceted, involving both national and international factors,” the judge wrote.

Howell accepted the core of the Obama administration arguments for the legality of the executive actions: that they fall within the ambit of prosecutorial discretion.

“Although the challenged deferred action programs represent a large class-based program, such breadth does not push the programs over the line from the faithful execution of the law to the unconstitutional rewriting of the law for the following reason: The programs still retain provisions for meaningful case-by-case review,” she wrote. “This case-by-case decisionmaking reinforces the conclusion that the challenged programs amount only to the valid exercise of prosecutorial discretion and reflect the reality that ‘an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.'”

This would seem to be an argument that applies not just to the arguments that Arpaio made in his lawsuit, but also to those made in the lawsuit that was filed recently by Texas and a group of other states which makes similar arguments to the ones that Arpaio makes in his lawsuit about how the policy changes allegedly increase the burdens on him and his constituents when it comes to enforcing the law. One problem with that, of course, is the fact that if the President’s policy had made the immigrants in question at least temporarily legal, then neither Arpaio nor the law enforcement agencies of any of the state’s involved in the other lawsuit really have anything to worry about. More broadly, though, as Judge Howell goes on to explain in her opinion, that simply doesn’t give rise to the kind of particularized injury necessary to give someone standing to sustain a claim in Federal Court:

Ultimately, the plaintiff’s standing argument reduces to a simple generalized grievance: A Federal policy causes his office to expend resources in a manner that he deems suboptimal.10  To accept such a broad interpretation of the injury requirement would permit nearly all state officials to challenge a host of Federal laws simply because they disagree with how many—or how few—Federal resources are brought to bear on local interests. Fortunately, the standing doctrine is not so limp. As the Supreme Court has repeatedly emphasized: “‘a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that no more directly [or] tangibly benefits him than it does the public at large—does not state an Article III case or controversy.'” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 573); see also Pl.’s Supp. Decl. ¶ 3 (“By this lawsuit, I am seeking to have the President and other Defendants obey the U.S. Constitution and the immigration laws . . . .”). Simply put, a state official has not suffered an injury in fact to a legally cognizable interest because a federal government program is anticipated to produce an increase in that state’s population and a concomitant increase in the need for the state’s resources. Cf. Massachusetts v. EPA, 549 U.S. 497, 520-521 (2007) (finding standing for Massachusetts because of state’s ”quasi-sovereign interests” relating to its “desire to preserve its sovereign territory” not because of the increase in state expenditures resulting from federal policy concerning global warming).
Moreover, the plaintiff’s alleged injury is largely speculative. The plaintiff argues that the challenged deferred action programs will create a “magnet” by attracting new undocumented immigrants into Maricopa County, some of whom may commit crimes under Arizona law. Pl.’s Mot. at 16-17; see also Pl.’s Mot., Ex. G, Decl. of Sheriff Joe Arpaio ¶¶ 7, 11-14, ECF No. 7-7.  Yet, the decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country. The plaintiff reduces this complex process to a single factor:  the challenged deferred action programs.

Even drawing all inferences in favor of the plaintiff, the terms of the challenged deferred action programs do not support the plaintiff’s theory. The challenged deferred action programs would have no impact on new immigrants, as the guidance defining the programs makes clear that these programs only apply to undocumented immigrants residing in the United States prior to January 1, 2010. 2014 Guidance Memorandum at 4. Thus, it is speculative that a program, which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into Maricopa County (and other borders of this country). The plaintiff has been unable to show that the challenged deferred action programs have interfered with his official duties as Sheriff in a manner that “is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical” and has therefore failed in his burden to establish an injury in fact. Defenders of Wildlife, 504 U.S. at 560.

As I noted above, the arguments that the states are making in their lawsuit are fairly similar to the one’s that Arpaio makes in his, right down to the allegation that the so-called “executive amnesty” would make the states law enforcement duties more difficulties by allegedly making it more likely that people will try to come to the United States illegally. As Judge Howell notes, the connection between what the President has announced and what the states fear is speculative at best and, more importantly, entirely unrelated since none of the people who come to the United States illegally at this late date, or after the new program goes into effect, would be eligible for the deportation relief that the program the President announced will provide. Thus, it’s hard to see how the lawsuit filed by the states can avoid the same fate as this lawsuit, although it’s certainly possible that the Federal Judge that will be hearing that case, which was filed in Texas rather than Washington, D.C., could rule differently than Judge Howell. In the long run, though, Federal law on this issue is exceedingly clear and it is difficult to see either the Fifth Circuit or, if it comes to that point, the Supreme Court, finding standing in that case, or this one as it makes its way through the appellate process. The only question is how long it will be before the cases are disposed of, and how Congressional Republicans will react to the inevitable outcome.

Here’s the opinion:

Arpaio v. Obama Et Al by Doug Mataconis

FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. humanoid.panda says:

    Really the fact that Arpaio, who had spent the last six year pretending to “investigate” the birth certificate issue and thus making mockery of the rule of law is argument no. 1 against both federalism and and election of law and order officials.

  2. michael reynolds says:

    Remember when Republicans used to be against frivolous lawsuits?

  3. gVOR08 says:

    @michael reynolds: And for fiscal responsibility?

  4. Craigo says:

    Who will be the first to inform us that the standing doctrine is a liberal plot?

  5. Ron Beasley says:

    @Craigo: Who will be the first to admit if they were all deported we would starve to death and be unable to get a new roof.?

  6. al-Ameda says:

    U.S. District Judge Beryl Howell dismissed a challenge brought by Arizona Sheriff Joe Arpaio and backed by conservative legal activist Larry Klayman. Howell ruled that Arpaio had not shown the direct harm from Obama’s actions needed to institute a lawsuit in the federal courts.

    Joe Arpaio and Larry Klayman? That is the Area 51 Daily Double, right there.
    Klayman believes that Obama is dismantling America as payback for discrimination against whites:

    “And in my view, and this may sound harsh, but I think people are starting to believe it, is that he believes that this country had to pay back for years of invidious discrimination to African Americans — and it was terrible discrimination, I agree — and he has dismantled this country in many ways as a payback..”

  7. OzarkHillbilly says:

    @Ron Beasley:

    Who will be the first to admit if they were all deported we would starve to death and be unable to get a new roof.?

    Nice to know Ron, that you would rather die than pay an honest days wages for either.

  8. HarvardLaw92 says:


    Exactly. I stopped reading at “Klayman”. There was no point in reading any further.

  9. OzarkHillbilly says:

    @HarvardLaw92: Heh. Klayman is the new Barnum.

  10. HarvardLaw92 says:


    I’d compare him more to Paris Hilton. Barnum knew he was selling ridiculous, and knew that it was ridiculous when he took it to market.

    Hilton actually thinks that she’s a serious actress, much in the same way that Larry thinks he’s still a legitimate attorney. Neither one of them has managed to figure out that everybody else in the room is laughing at them.

    He’s the same nimrod, after all, who recently sued the federal government, alleging that it secretly allowed Ebola into the US as part of a plot to further terrorist interests against members of the “Caucasian race and Jewish-Christian Americans”. Seriously …

  11. The ruling came just one day after Klayman, Arpaio’s lawyer, presented a colorful argument laced with political barbs at a hearing that extended to more than an hour.

    In other words, Aripao knew perfectly well this was a bullshit lawsuit, but is willing to waste taxpayer money so he can start campaigning for governor.

  12. Just 'nutha' ig'rant cracker says:

    @michael reynolds: @gVOR08: No. As I remember, they were only against frivolous lawsuits about laws that they wanted enforced. Fiscal responsibility has also always meant what Sharon Angle said in her run for office: “I’m tired of the government spending my money on things that I can’t use and don’t want.”


  13. Tony W says:

    @OzarkHillbilly: This.

    I’m so tired of folks saying “they’re doing the jobs we won’t do”. No. This is not the case, unless you add “for the crappy pay we are offering” to the end of the sentence.

    Plenty of natural born Americans would work in the fields and rooftops if there was not a desperate immigrant labor force available to undercut the price of labor and work under exploitive conditions. This tension is reason #43 why Republicans are full of crap when they say they want immigration reform. Maybe some portion of the base (the guns & fear crowd) does, but big business (who runs the show) wants nothing to do with a tightened labor market.

  14. Barry says:

    @Tony W: “Maybe some portion of the base (the guns & fear crowd) does”

    Not even them; they like cheap sh*t. An a low-end labor force even less protected by the law is a dream for those who long for the days when that was the norm, if you know what I mean.

  15. humanoid.panda says:

    Serious question for the lawyers in the building: can courts do something about a guy like Klayman, who keeps spamming them with ridiculous lawsuits (he had filed a number of birther complaints, for example)?

  16. @Tony W:

    Maybe some portion of the base (the guns & fear crowd) does, but big business (who runs the show) wants nothing to do with a tightened labor market.

    Big business doesn’t care about immigration, they can just import stuff from other countries. The exploitation of illegal immigrant labor is more a small business thing than a big business thing.

  17. Deserttrek says:

    @Tony W: the guns and fear crowd … and you must be from the bigot crowd .. happy new year

  18. Tony W says:

    @Deserttrek: Not sure why you’re using the term “bigot”, but when toddlers shoot their mom in the shampoo aisle of WalMart because that mom is too afraid to get groceries without her loaded gun, well that (former) gun owner earns the moniker. My own son (currently enlisted military service) won’t go to CVS for sniffle medicine without packing heat – that’s what fear does to otherwise rational people. If you want to call me a bigot for pointing that out – you might as well call me a swimming pool.

  19. HarvardLaw92 says:


    Yes. Under Rule 11 of the Federal Rules of Civil Procedure, any litigant / litigant’s attorney who presents any pleading / motion / etc. to a federal court is required to certify that, to the best of the presenter’s knowledge, his/her legal contentions (quoting) “are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”. In some cases, monetary civil penalties may be imposed on the presenting party for bringing frivolous litigation before the court. Similar provisions are in force in the tax and bankruptcy courts. Further provisions are in force in the circuit courts and SCOTUS by which frivolous litigants can be mandated to pay actual damages to the prevailing party.

    Beyond that, some judges will bar the attorney from practicing in their courtroom. Klayman has been banned for life by two federal judges, WIlliam Keller of the US District Court for the Central District of California, and Denny Chin, formerly of the US District Court for the Southern District of New York (currently seated on the US Court of Appeals for the Second Circuit).

  20. Barry says:

    @humanoid.panda: “Serious question for the lawyers in the building: can courts do something about a guy like Klayman, who keeps spamming them with ridiculous lawsuits (he had filed a number of birther complaints, for example)?”

    I’ll bet that they can, but save that for people who are doing things that the courts actually dislike.

    I’ve notice that again and again and again, if you’re doing destructive things that the elites want, the rules get soft. Doing things that the elites don’t like? Expect the rules to get very hard.

  21. C. Clavin says:

    Mario Cuomo passed today at 82.