In his motion to the United States Court of Appeals for the 10th Circuit, Drummond says the plaintiffs in the case — Department of Justice officials and individuals in a group called Padres Unidos de Tulsa — shouldn’t have been able to sue for an injunction in federal court at all.
Drummond maintains the arguments he’s already made in favor of House Bill 4156: Giving local law enforcement in Oklahoma the ability to arrest anyone without legal immigration status is necessary to fight what he calls an “unprecedented onslaught” of criminal activity caused by illegal immigration through the southern border.
He adds the plaintiffs lack “cause of action” and standing to sue in federal court.
“Without a valid cause of action, the United States relied on speculation about how HB 4156 would be implemented, spurious conclusions about the law’s underpinnings, and fundamental misconceptions about a state’s sovereign rights and duties in a federalist system of government.”
The plaintiffs, who originally filed the lawsuit in the Western District Court of Oklahoma, have argued the state’s new law undermines federal authority over immigration policy.
The judge in that court agreed with federal authorities on the matter. Drummond vowed at the time to appeal the ruling and has made good on the promise, writing in a press release that he’ll take matters to the nation’s highest court if the appellate court rules against him.
“I will continue fighting against the open border policies of the Biden-Harris Administration all the way to the U.S. Supreme Court if that’s what it takes to protect my fellow Oklahomans,” he said.
‘The United States’ claims are not justiciable and cannot be brought in federal court’
Calling the claims made by the plaintiffs “not justiciable” is another way for Drummond to say he doesn’t think any federal courts should have taken up the challenge to HB 4156 at all.
“Before the district court, the United States pointed to neither a specific statutory authority nor a traditional equitable principle that would allow its claims to go forward.” Drummond wrote in his appeal.
He wrote that relying on the Supremacy and Foreign Commerce Clauses in the United States Constitution is where the Department of Justice officials failed to prove their case should be brought to federal court.
Drummond quotes the ruling in the 2015 case Armstrong v. Exceptional Child Center, Inc:
“The Supremacy Clause is not the source of any federal rights,” the federal judge’s opinion in that case reads. “It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.”
In other words, the Supremacy Clause, which purports federal laws supersede state laws in cases where they may conflict, doesn’t inadvertently give the federal government a “constitutional right to enforce laws against the states.
”Drummond hardly mentions the qualms raised by the group Padres Unidos de Tulsa, writing that their case shouldn’t be considered because they “lack standing” – another legal term – to file to stop the law.
For someone to sue and stop the enforcement of a law, they need to be able to show it has either harmed them or will harm them in the immediate future.
Drummond wrote the plaintiffs can’t rely on a “manufactured” harm to gain standing in court, again quoting a 2013 Supreme Court opinion.
“Plaintiffs ‘cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,” he wrote.
Drummond wrote even if the Padres Unidos plaintiffs could establish harm, if they were in the country without federal permission, they still wouldn’t have standing.
“To the extent that any individual plaintiff is admitting that he or she is in Oklahoma unlawfully under federal law, a ruling in that plaintiff’s favor will not eliminate their unlawfulness, as is the typical case with a plaintiff challenging a law,” he wrote.
“Rather, they are complaining that Oklahoma’s actions will make their criminal activity more difficult. This cannot be a ground for standing.”
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