Tuesday, December 16, 2014

Breaking News: District Court Strikes Down Obama Deferred Action Plan

The Jonathan Adler on the Volokh Conspiracy reports that a federal court has invalidated parts of President Obama’s executive actions on immigration.

Judge Arthur Schwab of the U.S. District Court in the Western District of Pennsylvania held that 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. Finding that the executive action amounts to legislation, Judge Schwab concluded that the executive action violated separation of powers and the Take Care Clause of the Constitution (Article II, Sec. 3) (providing that the President must "take Care that the Laws be faithfully executed").

One might reasonably asky how the issue get to the court so fast.  The issue arose in the case of Elionardo Juarez-Escobar, who had previously been deported, reentered the country, been arrested for suspicion oif driving under the influence, turned over to the Department of Homeland Security, and charged with -- and pleaded guilty to -- illegal re-entry into the country.  His sentencing was pending when President Obama announced the executive action on immigration on November 20. 

Judge Schwab used the illegal re-entry case as a launching pad for a broadside attack on President Obama's immigration actions, in particular the deferred action program and the removal priorities. 

While it seems clear that Juarez-Escobar would not be eligible for relief, Judge Schwab in a somewhat meandering opinion stretches to find a possible claim in an apparent attempt to place in doubt many of the Obama administration's actions.  Judge Scwhab also attacks "sanctuary cities," suggesting that the defendant may have a claim of arbitrary treatment because he would not have been turned over to the DHS by local police in some jurisdictions. 

The Court asked for additional briefing and notice about what the defendant may seek to do (including possibly withdrawing his guilty plea) by January 6, 2015.  We can expect this case to be in the news in the coming year.

This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. 

Judge Schwab has been the subject of critical commentary  (and here) in the past.  For the argument that the judge, not President Obama, is engaging in immigration activism, click here.

UPDATED Dec. 17.



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