District Court Judge Declares President Obama's Immigration Action Unconstitutional

This is incredibly strange: Yesterday, a Republican-appointed judge in a federal court in Pennsylvania, Judge Arthur Schwab, "declared aspects of President Obama's executive actions on immigration policy unconstitutional." What's strange about this ruling is that the constitutionality of Obama's executive action was not under scrutiny; it was a pretty typical immigration case in which the defendant had been deported and then reentered the country illegally, and the defense team did not raise the issue of the new immigration action. The judge instigated it.

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.

...It is quite unusual for a district court to reach this sort of constitutional issue in this sort of case. Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.

At Think Progress, Ian Millhiser calls this "an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy."

Schwab spends just five pages discussing his rationale for this conclusion, an unusually short amount of legal analysis for a complex question regarding the scope of the executive branch's power to set enforcement priorities. Notably, Schwab also spends nearly three pages discussing quotes from President Obama which, the judge claims, indicate that Obama once thought his present actions are illegal — even though Schwab eventually admits that these quotes are "not dispositive of the constitutionality of his Executive Action on immigration."

Half of Schwab's analysis of the Executive Action's constitutionality is devoted to a strawman. Noting that Obama cited Congress's failure to act on immigration in his speech announcing the new policy, Schwab devotes half of his analysis of the policy's constitutionality to explaining that "Inaction by Congress Does Not Make Unconstitutional Executive Action Constitutional." He's right on this point, just as Schwab would be correct if he argued that President Obama's authority to create this new policy does not come from a magic hat that Obama keeps in the Oval Office. But it's somewhat curious that the judge feels the need to present Obama's political rhetoric as if it were a constitutional argument and then tear that non-argument down.

The remainder of Schwab's brief constitutional analysis concludes that the new policy "Goes Beyond Prosecutorial Discretion — It is Legislation." Notably, however, Schwab cites no judicial precedents of any kind to support this conclusion.

...So Schwab's legal analysis is thin. He spends nearly as much time making what appear to be political attacks on the president as he does evaluating actual legal matters. And what little legal analysis he does provide fails to cite key Supreme Court decisions that seem to contradict his conclusion. Judge Schwab traveled far along a very thin branch to reach this decision, and he anchored his decision with little grounding in legal authorities.

I eagerly await conservatives' complaints about activist judges. Nope? Not on this one? Huh.

I understand why there are people who don't like that President Obama enacted immigration reform via executive action. Frankly, I'm not thrilled about it myself—but the ire about that is best directed at Congress, who failed utterly to even seriously consider no less pass meaningful immigration reform when it was desperately needed. President Obama didn't circumvent a legislative route; he did what the legislature refused to do.

And he did it in an entirely legal way. Not for nothing, but it ain't liberals who have traditionally argued for a strong unitary executive. Careful what you wish for, friends.