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“Ill-Advised and Poorly Reasoned” – Putting Judge’s Ruling on Immigration Executive Action in Context

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Yesterday brought the news that Arthur Schwab, a federal judge in Pennsylvania, ruled that President Obama’s executive action for immigrants is unconstitutional.  There’s no injunction — the ruling was completely off the cuff and has no actual consequences on the President’s executive actions.  But it’s just a reminder that playing politics with immigration is not just a sport for some in the federal and state legislatures—activist judges are also getting into the game.

The ruling is strange in a number of ways.  There’s basically no plaintiff – the ruling did not come as the result of a hearing or a lawsuit and the judge was supposed to be handing down a sentence in a criminal case when he decided on a broad judgment.  As Dara Lind at Vox Media tweeted, “Fed judge was asked to sentence 1 immigrant.  Instead he declared Obama’s imm exec actions unconstitutional.”  

Here’s David Leopold, former President of the American Immigration Lawyers Association, with more on how unnecessary the overbroad ruling was:

The case in Pennsylvania is not about President Obama’s immigration executive actions, it’s a criminal case involving a defendant who pled guilty to illegal reentry after deportation, a federal felony.  The issue before the judge had nothing to do with whether or not the defendant qualified for a deportation reprieve under President Obama’s executive actions—he clearly did not—it was the appropriate sentence to be imposed it light of his guilty plea.  It’s shocking that a federal judge would use an unrelated criminal case to take it upon himself to declare the lawful, discretionary decisions of a sitting President unconstitutional.  I’m confident that this ill-advised and poorly reasoned opinion will be corrected by the Court of Appeals.

Echoes Josh Blackman, an Assistant Professor of Law at the South Texas College of Law, at his blog today:

Even the most basic avoidance cannon would say this was a serious reach. It would have been appropriate, if at all, to say that because the policy doesn’t apply to the defendant, there is no need to reach the constitutionality of DAPA. But the court did the exact opposite….It isn’t clear why the court was even in a position to find the law unconstitutional, nor is it clear what this declaration means.

Ilya Somin, Professor of Law at George Mason University School of Law, takes apart the judge’s claims that executive action 1) is not done on a case-by-case basis, and 2) allows immigrants to claim substantive rights:

Strikingly, Judge Arthur Schwab attempts to dispose of a complex and important constitutional issue in just three or four pages.  In the process, he ignores important weaknesses in his position…

If the Supreme Court were to adopt Judge Schwab’s reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president’s order was. Neither possibility is particularly attractive, and neither is required by the Constitution.

Also unusual was the extent to which the judge examined past statements from President Obama (as Ilya Somin wrote, “Such flip-flopping may be deplorable; but it says very little about the constitutionality of the president’s actions.”)  Talking Points Memo points out how this part of the judge’s ruling is similar to the arguments of the anti-immigrant crowd:

The judge quoted past statements by Obama suggesting that granting deportation reprieves to more undocumented immigrants would exceed his executive authority. ‘President Obama has stated,’ Schwab wrote, ‘that he is constrained from issuing an Executive Action/Order on immigration because such action would exceed his executive powers…While President Obama’s historic statements are not dispositive of the constitutionality of his Executive Action on immigration, they cause this Court pause.’

Echoing a common Republican argument, the judge suggested that under Obama’s rationale, a future president could instruct the IRS to collect a lower tax rate than established by law and ‘defer prosecution of any taxpayer’ who pays the lower rate.

Think Progress agrees that the judge’s rationale is “thin” in an analysis that delves into the legal arguments behind prosecutorial discretion:

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.

Finally, both Talking Points Memo and the Huffington Post check out the judge himself, a Republican appointee of George W. Bush.  He has quite the checkered record.  

From Huffington Post:

“The judge, who has a highly unusual history of being removed from cases due to temperament and charges of bias, was not asked to rule on the issue and instead inserted his opinion into a criminal case.

Schwab was removed from a case in 2008 to bring about what a higher court called ‘a reduced level of rancor,’ a rare if not unprecedented move that a law professor told the Pittsburgh Tribune-Review at the time was ‘considered to be a disciplinary action.’  He was pulled from a case again in 2012. Schwab recused himself from 17 ongoing cases in 2011 because of bias allegations.  He was the first federal judge to advance the scope of religious protections created by the conservative Supreme Court justices in the recent Hobby Lobby decision.”

And Talking Points Memo:

Schwab once adopted a defendant’s opinion as his court order, ‘with only two substantive changes’

In 2004, the Third Circuit reversed one of Schwab’s rulings in the case of Bright v. Westmoreland County. The reason it gave was extraordinary.

‘The Court of Appeals, Nygaard, Circuit Judge, held that reversal and remand was required where district court, with only two substantive changes, adopted defendants’ proposed opinion and order as its own,’ the circuit order read.

Schwab once received the lowest rating among judges from county lawyers

In a 2008 survey of lawyers with the Allegheny County Bar Association, Schwab received the lowest ranking among federal judges, according to a June 2008 article in the Pittsburgh Post-Gazette. On a scale of 1 to 5, Schwab ‘received the lowest scores both for impartiality, with an average score of 2.82, and temperament, with an average of 2.21,’ the paper reported.

To review, here’s a succinct primer on the whole thing from Dara Lind at Vox:

  1. A federal judge in Pennsylvania’s Western District has just declared that Obama’s recent executive actions on immigration are unconstitutional.
  2. The case before the judge, Arthur Schwab, wasn’t about Obama’s actions themselves; it was a criminal case against an immigrant who’d been deported and reentered the US. The judge was asked whether Obama’s actions would protect the defendant from getting deported again, and took the opportunity to rule the entire program unconstitutional.
  3. However, the judge didn’t issue an injunction against the executive actions — so the decision doesn’t do anything to stop Obama’s actions from being implemented, for the moment.
  4. Because it’s not clear that ruling on Obama’s actions was necessary to resolve the actual legal question, it’s not clear how long the judge’s ruling will last before being stayed or reversed.
  5. The official lawsuit against Obama’s executive actions, led by 24 state attorneys general, is currently sitting in the Southern District of Texas.