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December 16, 2014

Federal judge in sentencing proceeding(?!?!) declares Prez Obama's immigration order unconstitutional

As reported in this CNN piece, a federal district judge used a federal criminal case to render an opinion that President Obama's recent immigration execution action was unconstitutional. Here are the basic details of a peculiar decision:

A federal judge in Pennsylvania ruled Tuesday that President Barack Obama's move to halt deportations for millions of undocumented immigrants violates the Constitution -- but it's not clear that the ruling will have any immediate impact.

Pittsburgh-based U.S. District Judge Arthur Schwab, a George W. Bush appointee, became the first judge to rule on the legality of Obama's executive overhaul of immigration rules when he issued his unusual opinion in a criminal case. The Justice Department shot back that the judge was "flatly wrong" and his ruling wouldn't halt the implementation of Obama's immigration policies.

The decision -- which came in a criminal case against Honduran immigrant Elionardo Juarez-Escobar, who'd been deported before, returned to the United States and faced charges of unlawful re-entry after a drunk driving arrest -- was unexpected, and is unrelated to the legal challenge dozens of states have launched against Obama's move.

Prosecutors in the case argued that Obama's immigration policies were only meant to apply to civil proceedings, and don't have any impact on criminal proceedings like what Juarez-Escobar faced. Still, Schwab said in his 38-page ruling that Juarez-Escobar could have benefited under Obama's action to halt deportations for some undocumented immigrants.

Obama's action violates the Constitution's separation of powers and its "take care clause," Schwab said. He wrote that Obama's action "goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights."...

Schwab said Juarez-Escobar didn't fall within any of the priority categories Obama identified for deportation, so it's not clear that removing him from the country would be a priority -- potentially blurring the lines between civil and criminal proceedings. The Justice Department blasted the opinion, with a spokesperson saying it was "unfounded and the court had no basis to issue such an order."

The full 38-page opinion in this case is available at this link, and there are a number of interesting passages beyond the Court's constitutional analysis.  Of particular note, Judge Schwab discusses at some length the Supreme Court's Padilla ruling and its emphasis on the connections between criminal convictions and deportation consequences. 

Unsurprisingly, this ruling has already become the subject of some notable commentary.  Here is some of the early commentary:

December 16, 2014 at 11:19 PM | Permalink


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"(a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination"

It's not clear to me that prosecutorial discretion requires a "case by case" analysis. While I think that is typical procedure, I don't know where in the Constitution that is required.

Posted by: Daniel | Dec 16, 2014 11:35:37 PM

The decision, to put it kindly, is insane. The judge reached out to decide an issue that neither party had raised -- and they hadn’t raised it because it is utterly irrelevant to the defendant’s sentence.

The decision also makes little sense on the merits. Normally you’d be concerned if the President were refusing to enforce the law against large, clearly defined classes of individuals because that very much sounds like the President is doing the job of the legislature. But that framework makes little sense when Congress creates broad laws and then doesn’t provide the President near enough money to fully enforce the law. Basically, Congress has created a situation in which the President can’t fully enforce the law and therefore must decide who the law will be enforced against. In such a situation, it makes little sense to have case by case decision making. Instead, if makes much more sense to have broad rules of enforcement. That ensures fair, transparent application of the law. It’s also much more administratively feasible.

Posted by: ThatJudgeIsCrazy | Dec 16, 2014 11:36:31 PM


That case-by-case determination language comes from HECKLER v. CHANEY, 470 U.S. (1985). I agree however that it's a standard without foundation.

Posted by: Soronel Haetir | Dec 17, 2014 2:42:05 AM

When conservatives from Volokh Conspiracy and liberals from Think Progress both find a ruling lacking, there are red flags. But, it's out there, now certain people will have more fodder to promote the meme that the order is constitutionally controversial. The judge also seems to have been busy in his first decade gaining controversy.

First impression -- judge is trolling.

Posted by: Joe | Dec 17, 2014 9:24:42 AM

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