Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority.
This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I’ve now posted the opinion here.]
The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation. In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.
This isn’t the only case challenging the lawfulness of the Obama’s immigration actions. Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms. Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area. As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims. Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court.
“…it has become apparent that the IRS did not undertake any significant efforts to obtain the emails from alternative sources following the discovery that the emails were missing.”
(Washington, DC) – Judicial Watch announced today that the Internal Revenue Service (IRS) admitted to the court that it failed to search any of the IRS standard computer systems for the “missing” emails of Lois Lerner and other IRS officials. The admission appears in an IRS legal brief opposing the Judicial Watch request that a federal court judge allow discovery into how “lost and/or destroyed” IRS records relating to the targeting of conservative groups may be retrieved. The IRS is fighting Judicial Watch’s efforts to force testimony and document production about the IRS’ loss of records in Judicial Watch’s Freedom of Information Act (FOIA) litigation about the IRS targeting of Tea Party and other opponents of President Obama (Judicial Watch v. IRS (No. 1:13-cv-1559)). The lawsuit is before U.S. District Court Judge Emmett G. Sullivan.
In its September 17 Motion for Limited Discovery, Judicial Watch argues that, despite two orders, the IRS had consistently failed to provide information detailing how “the missing emails could be retrieved from other sources and produced to Judicial Watch.” On October 17, IRS attorneys asked the court to deny the Judicial Watch request, even while admitting that additional Congressional requests “could result in additional documents being located…”
In its October 27 Reply in Support of Motion for Limited Discovery, Judicial Watch argued that declarations submitted by the IRS in response to the Judge Sullivan’s orders “fail to answer important questions about the missing emails:”
[I]t has become apparent that the IRS did not undertake any significant efforts to obtain the emails from alternative sources following the discovery that the emails were missing. The emails are potentially responsive to Plaintiff’s FOIA requests, and the IRS’s failure to search for them in other recordkeeping systems raises material questions of fact about whether the agency has conducted a reasonable search.
Judicial Watch lawyers reviewed the IRS court filings and concluded that the agency “did not undertake any significant efforts to obtain the emails.”
IRS attorneys conceded that they had failed to search the agency’s servers for missing emails because they decided that “the servers would not result in the recovery of any information.” They admitted they had failed to search the agency’s disaster recovery tapes because they had “no reason to believe that the tapes are a potential source of recovering” the missing emails. And they conceded that they had not searched the government-wide back-up system because they had “no reason to believe such a system… even exists.”
The IRS admitted to Judge Sullivan that the agency failed to “submit declarations about any of the foregoing items because it had no reason to believe that they were sources from which to recover information lost as a result of Lerner’s hard drive failure.” [Emphasis added] Department of Justice attorneys for the IRS had previously told Judicial Watch that Lois Lerner’s emails, indeed all government computer records, are backed up by the federal government in case of a government-wide catastrophe. The Obama administration attorneys said that this back-up system would be too onerous to search. In the October federal court filing, the IRS does not deny that the government-wide back-up system exists, and acknowledges to the court that 760 other email “servers” have been discovered but had not been searched. The IRS also refuses to disclose the names of the IRS officials who may have information about the IRS scandal, citing unspecified threats. The IRS says it pulled documents about the scandal from various employees into a “Congressional database” and that it has only searched this one “database” for missing records. Incredibly, the IRS has not searched any of the IRS’s regular computer systems for any missing records and admits that it has only searched a “database” that it knows does not contain the missing records being sought by the court, Judicial Watch, and Congress.
Rather than provide information to Judicial Watch and the court under oath about the missing records, the IRS intends for Judicial Watch to wait indefinitely for its production of the records. Judicial Watch argues the IRS’ continuing “failure to provide complete information highlights the need for limited discovery. Neither Judicial Watch nor the court should have to rely on incomplete transcripts, out-of-court conversations, or the other, limited information Judicial Watch’s attorneys have been able to glean from congressional correspondence, media reports, and the internet to determine what system of records the IRS should reasonably search to recover the missing emails. As in all FOIA litigation, an “asymmetrical distribution of knowledge” exists between the IRS on the one hand, and Judicial Watch and the court on the other. It is precisely because the IRS has refused to provide pertinent, complete information that limited discovery is necessary.”
“The Obama IRS couldn’t care less about the federal court’s orders to provide full information about the ‘missing’ Lois Lerner emails,” said Judicial Watch President Tom Fitton. “Instead, the IRS, with the help of a compromised Justice Department, has engaged in a series of transparently evasive distractions. The IRS would have Judicial Watch wait for years before we can ask questions about the cover-up that is going on now. The IRS thinks it can game a federal court, Congress, and the American people. Having delayed accountability for over two years, the Obama administration is prepared to stonewall on the IRS targeting of Obama’s ‘enemies list’ until after the 2016 presidential election. Judicial Watch’s lawsuit can continue to break through this obstruction of justice, especially if the court approves our effort to put select Obama officials under oath.”
In his decision, U.S. District Judge Ronald White concluded Tuesday that the IRS rule altering the Obamacare law and providing billions in subsidies is “arbitrary, capricious and abuse of discretion”:
“The court holds that the IRS rule is arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law, pursuant to 5 U.S.C.706(2)(A), in excess of summary jurisdiction, authority or limitation, or short of statutory right, pursuant to 5 U.S.C. 706(2)(C), or otherwise is an invalidation of the ACA [Affordable Care Act], and is hereby vacated. The court’s order of vacatur is stayed, however, pending resolution of any appeal from this order.”
In September 2012, Oklahoma was the first of several states to challenge the legality of an IRS rule that caused billions in subsidies to be paid out, despite Congress having never authorized those payments.
Oklahoma Attorney General Scott Pruitt hailed the state’s victory in its lawsuit challenging the implementation of the Affordable Care Act:
“Today’s ruling is a consequential victory for the rule of law. The administration and its bureaucrats in the IRS handed out billions in illegal tax credits and subsidies and vastly expanded the reach of the health care law because they didn’t like the way Congress wrote the Affordable Care Act. That’s not how our system of government works.”
Pruitt said the ruling proves that the administration can’t change a law by executive fiat:
“The Obama administration created this problem and rather than having an agency like the IRS rewrite a law it didn’t like, the administration should have done the right thing and worked with Congress to amend the law. Oklahoma was the first to challenge the administration’s actions and today’s ruling vindicates what we recognized early on and that is the administration can’t rewrite the Affordable Care Act by executive fiat.”
He said the victory is just the beginning, because he fully expects the case to, ultimately, be decided by the Supreme Court:
“Today’s ruling is a huge win for Oklahoma, but it’s just a first step. Since Oklahoma filed the first lawsuit in 2012, others have followed our lead and made similar claims in other jurisdictions. It’s likely this issue will ultimately be decided by the U.S. Supreme Court. We look forward to making our case and continuing the effort to hold federal agencies accountable to their duty to enforce the laws passed by Congress.”
Oklahoma Sen. Jim Inhofe (R) also praised Judge White’s decision, saying that the Obama Administration is trying to fix a legally-dubious law using waivers and exemptions:
“Today’s decision is a reminder that the President’s broken promises of affordable, accessible health care are the result of broken policy. The Obama Administration has tried to make the law work with waivers and exemptions, but the courts continue to confront the legality of this legislation that was rushed through a Democrat-controlled Congress.”
“While it will undoubtedly take time for Oklahoma’s case to play out in the federal court system, I am confident in Attorney General Scott Pruitt and that our state’s argument will prevail.”
Tuesday’s decision is the latest in a wave of court losses for Obamacare.
Currently, over a hundred lawsuits have been filed against Obamacare – and Obamacare has lost 91% of the cases decided to-date, (71 losses out of 78 decisions), according to the latest tally by The Beckett Fund.
Islamic terrorist groups are operating in the Mexican border city of Ciudad Juarez and planning to attack the United States with car bombs or other vehicle born improvised explosive devices (VBIED). High-level federal law enforcement, intelligence and other sources have confirmed to Judicial Watch that a warning bulletin for an imminent terrorist attack on the border has been issued. Agents across a number of Homeland Security, Justice and Defense agencies have all been placed on alert and instructed to aggressively work all possible leads and sources concerning this imminent terrorist threat.
Specifically, Judicial Watch sources reveal that the militant group Islamic State of Iraq and Greater Syria (ISIS) is confirmed to now be operating in Juarez, a famously crime-infested narcotics hotbed situated across from El Paso, Texas. Violent crimes are so rampant in Juarez that the U.S. State Department has issued a number of travel warnings for anyone planning to go there. The last one was issued just a few days ago.
Intelligence officials have picked up radio talk and chatter indicating that the terrorist groups are going to “carry out an attack on the border,” according to one JW source. “It’s coming very soon,” according to this high-level source, who clearly identified the groups planning the plots as “ISIS and Al Qaeda.” An attack is so imminent that the commanding general at Ft. Bliss, the U.S. Army post in El Paso, is being briefed, another source confirms. The Department of Homeland Security (DHS) did not respond to multiple inquiries from Judicial Watch, both telephonic and in writing, about this information.
The disturbing inside intelligence comes on the heels of news reports revealing that U.S. intelligence has picked up increased chatter among Islamist terror networks approaching the 13th anniversary of the 9/11 attacks. While these terrorists reportedly plan their attack just outside the U.S., President Obama admits that “we don’t have a strategy yet” to combat ISIS. “I don’t want to put the cart before the horse,” the commander-in-chief said this week during a White House press briefing. “I think what I’ve seen in some of the news reports suggest that folks are getting a little further ahead of what we’re at than what we currently are.”
The administration has also covered up, or at the very least downplayed, a serious epidemic of crime along the Mexican border even as heavily armed drug cartels have taken over portions of the region. Judicial Watch has reported that the U.S. Border Patrol actually ordered officers to avoid the most crime-infested stretches because they’re “too dangerous” and patrolling them could result in an “international incident” of cross border shooting. In the meantime, who could forget the famous words of Obama’s first Homeland Security Secretary, Janet Napolitano; the southern border is “as secure as it has ever been.”
These new revelations are bound to impact the current debate about the border crisis and immigration policy.
Prime Minister David Cameron pledged Friday to plug gaps in Britain’s armory to combat terror, describing the extremist threat posed by the Islamic State group as being more dangerous than even that of al-Qaida.
Cameron’s remarks came just moments after authorities raised Britain’s terror threat level to severe, the second highest level. The decision was related to developments in Iraq and Syria, but there was no information to suggest an attack was imminent.
“What we are facing in Iraq now with ISIL is a greater threat to our security than we have seen before,” Cameron said, using an abbreviation for a longer name the Islamic State previously used: the Islamic State of Iraq and Levant.
He told reporters that while the Taliban facilitated al-Qaida terrorism, the Islamic State group is “effectively a state run by terrorists.” He said the ambition to create an Islamist caliphate is not something that could be ignored.
“We could be facing a terrorist state on the shores of the Mediterranean and bordering a NATO member,” he said.
Intelligence and security services now believe some 500 Britons have gone to fight in Syria and potentially Iraq. Some of the plots are likely to involve fighters who have traveled from Britain and Europe to take part in fighting in the Middle East.
British police have appealed to the public to help identify aspiring terrorists after the killing of an American journalist focused attention on extremism in the U.K. The involvement of a person of British nationality in James Foley’s beheading underscored the need to identify those who might travel abroad to fight or are at risk of being radicalized.
The attack on a Jewish museum in Brussels also underscored the willingness of the members of the group to attack Europeans.
British authorities say around 70 arrests have been made in the first half of the year for a variety of offenses, including fundraising, preparing for terrorism acts and traveling abroad for terrorist training. The police say such arrests are being made at a rate five times greater than 2013.
One action Cameron outlined was the possibility that passports could be taken away. He said further measures would be described in the House of Commons on Monday.
Britain also wants to revive a directive to enable police and security services to share passenger records in the European Union. Concerns about civil liberties have stalled the measure in the European Parliament.
“The root cause of this threat to our security is quite clear,” Cameron said. “It is a poisonous ideology of Islamist extremism that is condemned by all faiths and faith leaders.”
Britain raised the country’s terror threat level from substantial to severe just before Cameron held his news conference. The threat level means a terrorist attack is considered highly likely.
Home Secretary Theresa May said the decision by the Joint Terrorism Analysis Center was made on the basis of intelligence and independent of the Cameron and his Cabinet. “Severe” is the second-highest of five levels.
The last time the rate was raised to severe was in September 2010 – in response to the attempt to detonate a bomb on a U.S. passenger plane over Detroit. It was last raised to the highest level, or critical, in June 2007, after a car on fire was driven into the Glasgow Airport terminal building and – separately – two devices were found in cars in central London.
On July 7, 2005, four suicide bombers attacked the London transit system at rush hour and killed 52 commuters and injured hundreds.
As ISIS militants were bragging about their latest mass execution, President Obama admitted that he has no plan for combatting the bloodthirsty terrorists.
“We don’t have a strategy yet,” Obama said in a Thursday news conference.
The startling – and troubling – admission came hours after videos surfaced showing the militants marching at least 150 Syrian soldiers through the desert – stripped to their underwear and barefoot.
The troops were then executed, their bullet-riddled and slashed bodies arranged in a crescent moon that stretched across the desert.
“Yes, we have executed them all,” an ISIS fighter told Reuters.
Hours after the disturbing images were released, Police Commissioner Bill Bratton said the NYPD was keeping an eye on the Middle East. He was particularly concerned about American jihadists – some from our area – returning to wreak havoc back home.
“We are watching that very closely,” Bratton said, adding that more than 100 Americans are believed on the ground and with ties to terror groups abroad.
At least two Americans were killed in Syria last weekend, as they fought alongside ISIS militants.
The slain soldiers in the barbaric images released Thursday were captured while attempting to flee the Tabqa airfield after ISIS militants stormed the base, according to the Britain-based Syrian Observatory for Human Rights.
The apparent death march, posted to an ISIS YouTube account, is believed to have led to the largest mass killing carried out by the terror group.
The sickening footage opens with the half-naked men walking single file with their hands behind their heads.
An ISIS fighter repeatedly shouts out, “Islamic State!”
The prisoners respond immediately.
“It shall remain!”
The video then fades to black, but the footage that appears seconds later is horrifying. The camera follows a pile of bodies lying face-down in the sand. A dozen fighters are seen standing over the corpses as the cameraman moves from body to body.
At least 150 corpses can be seen in the video. The jihadists boasted on Twitter that they killed 250 soldiers, but that figure couldn’t be verified. An earlier video appears to show the same men, still clad in their underwear, being marched through the desert at gunpoint.
They are seen being forced to to walk and run. Those at the back of the line are kicked and beaten.
The soldiers were rounded up in the arid countryside near the Tabqa airfield on Wednesday – three days after ISIS fighters seized the base.
The troops were among a large batch of soldiers who were trapped behind the front lines after the merciless militants overran the airfield.
Some 200 Syrian soldiers and 346 ISIS fighters died in the fight for the air base, according to the Syrian Observatory for Human Rights. Hundreds more were wounded.
The Syrian government did not comment on the videos.
The stomach-churning footage marked the latest images released by a group that’s relied on a mix of bloody propaganda and brutal battlefield tactics to swallow up territory in Syria and Iraq. The Sunni extremists, also known as the Islamic State of Iraq and the Levant or ISIL, are said to control roughly a third of Syria.
Rep. Mike Rogers, chairman of the House Intelligence Committee, was stunned by Obama’s “no strategy” admission.
“It was an odd press conference at the very best, but to have a press conference to say we don’t have a stategy was really shocking given the severity of the threat,” Rogers said on CNN.
Sen. Mitch McConnell, (R-Ken.) said Congress is ready to help the president form a strategy to defeat ISIS.
“But don’t forget, the threat from ISIL is real and it’s growing – and it is time for President Obama to exercise some leadership in launching a response,” McConnell said.
Following Obama’s press conference, Sen. John McCain (R-Ariz.), a chief critic of the White House’s foreign policy, tweeted, “ISIS is largest, richest terrorist group in history & 192,000 dead in #Syria.”
In other developments Thursday:
ISIS has more than $2 billion – more than other terror groups like the Taliban and Hezbollah, InTheCapital.com reported. While thought in January to have about 1,000 fighters, the number has ballooned to about 80,000.
-Sources revealed to the Washington Post that James Foley, the American journalist beheaded by Islamic fighters, was waterboarded while in captivity.
-Syrian rebel fighters captured more than 40 United Nations peacekeepers near the Israeli border Thursday.
-It was revealed that Fort Hood gunman Nidal Hasan, imprisoned for killing 13 people at the Texas Army base in 2009, wrote a letter to the leader of ISIS saying he wants to become a “citizen” of the caliphate.
The contents of an ISIS laptop seized by Syrian fighters were revealed. The laptop, found in January in the province of Idlib, contained manuals on how to make bombs, videos of Osama Bin Laden and lessons about biological weapons, according to Foreign Policy magazine.
“The advantage of biological weapons is that they do not cost a lot of money, while the human casualties can be huge,” states one of the laptop’s more than 35,000 files.
In his Thursday news conference, Obama said he’s planning to dispatch Secretary of State Kerry to the Middle East in a bid to persuade America’s allies in the region to confront the terror group.
But Obama cautioned that immediate military action in Syria was unlikely.
“I don’t want to put the cart before the horse. We don’t have a strategy yet,” Obama said, noting that he would be meeting with the National Security Council later Thursday.
“We need to make sure that we’ve got clear plans, that we’re developing them.”
U.S. District Court Judge Emmet Sullivan Thursday ordered the Internal Revenue Service to come up with new answers after IRS employees contradicted sworn testimony about damage to Lois Lerner’s hard drive.
Sullivan ruled that “the IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 22, 2014″ on four issues: the IRS’ attempted recovery of Lerner’s lost emails after her computer allegedly crashed, bar codes that could have been on the hard drive, IRS policies on hard drive destruction, and information about an outside vendor who worked on IRS hard drives.
Recent documents from nonprofit group Judicial Watch’s Freedom of Information Act lawsuit against the IRS, which Sullivan is presiding over, showed that IRS technology officials contradicted sworn testimony about damage to Lerner’s hard drive.
Aaron Signor, an IRS technician that looked at Lerner’s hard drive in June 2011, said in IRS court filings that he saw no damage to the drive before sending it off to another IRS technician, leading some in the media to suggest that the lost emails scandal is basically over. But Signor’s statement, issued in response to the Judicial Watch lawsuit, does not jibe with sworn congressional testimony.
The Daily Caller reported that Lerner’s hard drive was “scratched” and then “shredded,” according to a court filing the IRS made to the House Committee on Ways and Means.
The IRS technology official who served as the source of the “scratched” and “shredded” revelation is believed to have looked at the hard drive after Signor.
Sullivan’s order seems to have been motivated by the obvious contradiction. Judicial Watch said that Sullivan made the order because the IRS’ new court filing featuring Signor’s statement was a “joke.”
“In an extraordinary step, U. S. District Court Judge Emmett Sullivan has launched an independent inquiry into the issue of the missing emails associated with former IRS official Lois Lerner,” Judicial Watch said in a statement. “Previously, Judge Sullivan ordered the IRS to produce sworn declarations about the IRS email issue by August 11. Today’s order confirms Judicial Watch’s read of this week’s IRS’ filings that treated as a joke Judge Sullivan’s order.”