Tuesday, December 16, 2014

District Judge Says President's Immigration Action is Unconstitutional

A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.

The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.

The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.

Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:

Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.

Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.

Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.

In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.

Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.

So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.

With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.

https://lawprofessors.typepad.com/conlaw/2014/12/district-judge-says-presidents-immigration-action-is-unconstitutional.html

Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink

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