Outside the Beltway

Federal Judge Kind Of, Sort Of Finds Obama’s Immigration Action Unconstitutional In Poorly Reasoned Decision

A Federal Judge has issued a ruling that sort of says that President Obama's Immigration action is unconstitutional. Except it's poorly reasoned, and apparently not legally binding on anyone.

Doug Mataconis · Thursday, December 18, 2014 · 8 comments

A Federal District Court Judge presiding over a seemingly run of the mill deportation proceeding has issued an order declaring President Obama’s executive action extending deportation relief to up to five million people to be unconstitutional, but legal experts on both sides of the aisle are calling the reasoning of the opinion into serious doubt:

A federal court judge on Tuesday declared aspects of President Obama’s executive action on immigration as unconstitutional, taking a case that legal experts say has virtually no direct connection to questions of the president’s executive authority as an opportunity to denounce the looming policy changes.

U.S. District Court Judge Arthur J. Schwab, a George W. Bush appointee who serves in the western district of Pennsylvania, issued a scathing, 38-page memo Tuesday detailing how the new policies go “beyond prosecutorial discretion” and violate the separation of powers.

Though the court’s opinion will not likely have any direct impact or serve to invalidate the policy, it marks the first time a federal court has addressed the constitutionality of the president’s executive actions.

he case involves an undocumented Honduran man named Elionardo Juarez-Escobar who pled guilty to charges of “illegal re-entry” after he was already deported in 2005. After returning to the United States a short time later, the Juarez-Escobar was eventually put on the Department of Homeland Security’s radar once again after he was arrested for drinking and driving and operating a vehicle without a driver’s license.

Schwab’s memo does not directly challenge the executive actions, but instead raises the issue while considering whether the new policies should affect how the court should sentence Juarez-Escobar. In order to determine whether the executive actions would apply to Juarez-Escobar’s case, the court must first determine whether the new measures are even legal, Schwab attests.

What remains unclear is whether Juarez-Escobar would even qualify for the executive actions in the first place. Under the new measures – which are being called the Deferred Action for Parental Accountability – undocumented immigrants who have lived in the U.S. for at least five years, have no criminal record and U.S.-born children can apply to temporarily live and work in the country for three years. Applicants who fit those qualifications will be reviewed on a case-by-case basis. But nowhere in Schwab’s memo is there mention that Juarez-Escobar has children who are U.S. citizens, and it is unclear whether his past run-ins with the law would count against him in seeking deferred action.

The White House has argued repeatedly that President Obama does have the legal authority to use prosecutorial discretion in determining which undocumented immigrants are priorities for deportation, and which aren’t. But the lack of a direct connection between the case and the President’s executive action, and set months before the planned implementation of the measures, has legal experts scratching their heads over why the judge brought up the issue in the first place.

“It strikes me as odd for a single judge to devote so many pages of a memo to his feelings about the president’s executive action when the case itself is about an individual immigrant who faces illegal re-entry charges,” said Shoba Sivaprasad Wadhia, a law professor at Pennsylvania State University and expert in prosecutorial discretion in immigration law. “There’s a little bit of political theater, and maybe the judge had a bad day.”

Wadhia said many of the arguments raised in Schwab’s memo Tuesday are easily debunked by experts in immigration law and the history of prosecutorial discretion. In one sub-head, Schwab writes, “Inaction by Congress Does Not Make Unconstitutional Executive Action Constitutional.” Another reads, “Executive Action Goes Beyond Prosecutor Discretion – It is Legislation.”

“That’s spin to me,” Wadhia said. “The reality is that Congress has failed to act and President Obama thought it wise to step in and use the proprietorial tools in his arsenal.”

While many on the right have reacted, predictably, quite positively to Judge Scwab’s decision, the reaction has not been the same among the online legal community, where his opinion has been met with a combination of confusion and outright derision from analysts on both sides of the political aisle, a reaction that suggests quite strongly that the Judge’s reasoning in this opinion is not likely to survive deeper scrutiny by a higher Court. The Volokh Conspiracy’s Jonathan Adler notes, for example, that the issue of of the applicability of the President’s newly announced deportation relief policy is not one that was raised by either party in the proceeding, but rather one that the Judge raised himself and asked the parties to address in supplemental pleadings. As Adler notes, this is perhaps understandable on some level since it may be possible that the Defendant in this case could be eligible for relief under the newly announced policy and that could potentially have an impact on how the Court chooses to address the issue of whether or not immediate deportation is an appropriate punishment in this particular case. However, as Adler goes on to note, neither party to the case is arguing that the President’s policy is unconstitutional, a fact which suggests that Schwab’s opinion is more in the nature of an unenforceable advisory opinion than any definitive statement of the law, especially since it does not appear to be relevant in any real respect to the matters at issue in the case at hand. Then, most bizarrely, even after having said that President Obama’s policy change is unlawful, Judge Schwab goes on to say that the Defendant in this case should have the opportunity to apply for relief under that policy, which would effectively moot his deportation proceeding were he found to be eligible. If Judge Schwab really intended his opinion to be some kind of binding determination of the constitutionality of President Obama’s action, then why would he do this? Moreover, as Adler goes on to note, even if it were the case that the broad policy that the President announced were unconstitutional for the reasons that Schwab says it is, there is no question that the Executive Branch would still be entitled to defer deportation, and grant work permits, on a case-by-case basis. Given that, and Adler’s colleague Orin Kerr notes, it’s hard to understand just what the Judge thinks he’s going here.

Adler’s and Kerr’s fellow Volokh blogger Ilya Somin makes a very similar point, and points out that the undeniable ability of the Executive Branch to make case-by-case deferments makes the argument against a broader policy largely nonsensical:

Ultimately, there is no principled distinction between “case-by-case examination” guided by general principles and what Judge Schwab derides as a “systematic and rigid process.” The latter simply generalizes the former and ensures that it is applied consistently. Schwab complains that generalized “threshold criteria” will “almost wholly determine eligibility” for deferred deportation under the president’s order. But any exercise of prosecutorial discretion – no matter how “case by case” it may be, must include consideration of criteria that that end up wholly determining the outcome. That’s the whole point of using criteria in the first place. Unfortunately, Judge Schwab fails to even consider the possibility that the key distinction he relies on might be unsound.

(…)

Judge Schwab’s second argument is little better than the first. The “substantive rights” Judge Schwab refers to are rights to work in the United States. He claims that the grant of these rights transforms undocumented immigrants into “quasi-United States citizens” such that the status given them by Obama’s order can no longer be “terminated at any time,” as can a regular exercise of prosecutorial discretion. But the fact remains that Obama or a future president can terminate both the executive order and the associated right to work any time he wants. If that amounts to “quasi-citizenship,” then citizenship may not be all it is usually cracked up to be. Indeed, the right to work is itself just another exercise of prosecutorial discretion, since it amounts to a decision not to prosecute these individuals and their employers for violating laws forbidding the hiring of undocumented immigrants.

Judge Schwab also worries that, because Obama’s policy is justified by humanitarian concerns for family unification, “any rescission” of the policy “by legislation or withdrawal by another Administration,” would be “arguably unjust, as it would violate core American familial values to abruptly deport these individuals [who]… have been allowed to deepen already existing ties to their lawfully present American family members and the wider community.”

I completely agree that such a rescission would be both unjust and and in violation of core American values. But that reality in no way makes Obama’s action unconstitutional.

Adler, Kerr, and Somin, it should be noted are all coming at this opinion from the right side of the political spectrum, and each of them finds the opinion to be, to say the very least wanting. Not surprisingly, the reaction on the left is similar, as this from Ian Millhiser demonstrates:

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.

One case that Schwab does not cite is Arizona v. United States, where the Supreme Court said that the executive branch has “broad discretion” in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”

Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.

Another problem Schwab does not address in his constitutional analysis is how, exactly, the executive branch is supposed to deport the many millions of undocumented immigrants in the United States if it is not allowed to set enforcement priorities among them. As the Justice Department explained in a memo discussing the legality of Obama’s policy, “there are approximately 11.3 million undocumented aliens in the country,” but the executive only “has the resources to remove fewer than 400,000 such aliens each year.”

The fact that Congress only provided sufficient resources to the Obama administration to remove a small fraction of the undocumented immigrants within the United States is itself a legislative judgment that most of these immigrants should not be removed. As the Supreme Court explained in Heckler v. Chaney, because federal agencies typically lack the resources to “act against each technical violation of the statute it is charged with enforcing,” they necessarily must set enforcement priorities. Moreover, these priorities generally should not be second-guessed by judges because “[t]he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.”

Having read Judge Schwab’s opinion myself, I come away about as confused by it as Adler, Kerr, and the others I’ve quoted above. As noted, Judge Schwab was not asked to address the Constitutionality of the President’s executive action by either of the party’s before him. Indeed, neither party had even brought up the issue in the prior pleadings in the action before him until he asked them to address it supplemental pleadings. While that last part isn’t unusual in and of itself — Judge’s will occasionally, for example, ask parties to address some legal issue that neither party has raised or one that has only become relevant because of something that happened after the initial round of pleadings had been filed — the way that Judge Schwab handled it here is highly unusual and the status he leaves the case in at this point makes it unclear if his determination that the President acted unconstitutionally has any legal validity whatsoever. As noted above, the final effect of the Order that the Judge enters here is to essentially leave the case open while the Defendant chooses whether or not to attempt to take advantage of the deferred deportation policy that the President has announced or go forward with the present case, which could result in his being deported back to his home country and/or sentenced to federal prison here in the United States. This despite the fact that Judge Schwab has, allegedly, found that the President’s policy is unconstitutional. To call this a bizarre outcome is putting it mildly.

At this point, it’s hard to say where this case goes from here. If the Defendant decides to attempt to apply for deferment, then the case would likely be put on indefinite hold until the agency charged with implementing that policy evaluates whatever application he ends up filing. Since the Obama Administration has already stated that the process of evaluating applications isn’t expected to be ready to begin until some time in the Spring, this means the case would be on hold for a considerable amount of time. Assuming for the sake of argument that the application is accepted and the Defendant’s deferment is put into place, then it’s unclear what happens next. By operation of law, it would appear that the case would then become moot, or at least that it should. Would Judge Schwab then decide on his own to undo the deferment by referring back to this opinion? Would he even have the authority to do so? Quite honestly, I don’t know the answer to those questions, and it doesn’t appear that anyone who has written about this opinion does either.

In addition to being poorly reasoned, then, it appears that Judge Schwab’s holding in this case is entirely meaningless. Because of the status of the case at this point, for example, it is not a holding that can be appealed by either party to the Third Circuit Court of Appeals, which is the Circuit that governs Pennsylvania. Given that, there is much less to what Judge Schwab has done here than meets the eye, and even to the extent that it can be considered a relevant precedent going forward it is so poorly reasoned that it is hard to see any other Federal Judge being persuaded by it.

Here’s the opinion:

U.S. v. Juarez-Escobar by Doug Mataconis