This week, a federal judge in Pennsylvania ruled that executive action is unconstitutional. As legal experts and opinion makers have already pointed out, there are quite a number of things wrong with this decision: there was absolutely no reason to use this case to hand down such a ruling, the judge cited arguments that were not at all relevant to constitutional questions, and the judge himself as a history of being called out for activism from the bench. You can read a primer on the case and a roundup of reactions to it here. Below are a few more reactions, all emphasizing how bizarre it was for Judge Arthur Schwab to make his stand against executive action on such a case.
Even John Yoo, the Bush attorney who thinks that executive action is an overreach, thinks the judge was wrong to “reach out and decide the action’s constitutionality”:
[T]his is not a case where the executive order applies, because the Obama administration is not allowing an illegal alien to remain in the country. [The case presents] no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in [this defendant’s] case.
Here’s Jennifer Rubin at the Washington Post on how the decision is “really bad judging”:
Ultimately his exercise in jurisprudential gymnastics in order to declare President Obama’s executive order unconstitutional is plainly faulty. If challengers are going to invalidate the action they will need another vehicle…
The judge decided on the constitutionality of the action before deciding if it applied to the defendant, which it did not (because he did not fit within the criteria of any designated group of people protected under the president’s order). Most law students know that when the constitutional issue can be avoided, the court is obliged to decide the case on more limited grounds. Here the judge went looking for it and went right for the issue he wanted to address. In other words, the whole discussion is “dicta,” extraneous material and does not stand for much of anything. And it is really bad judging.
Rick Ungar, a Forbes contributor on how there was literally no reas0j for the judge to do anything besides hand down a criminal sentence:
Pretty big deal, no?
I suppose it might have been had anybody, including the participants in the case before him, asked the Judge for his opinion on the matter.
But they didn’t. Nobody other than the judge himself had raised the issue. The participants never raised the issue because the constitutionality, or lack thereof, of the Obama immigration order had absolutely nothing to do with the case that was at bar…
And yet, Judge Arthur J. Schwab, who has quite the ‘interesting’ history (more on this in a moment), took it upon himself to insert the issue into the case (neither prosecutor nor defendant ever raised the matter) so that he could be the very first federal judge to tell us what he thinks about the constitutionality of the Obama Executive Order…
This might explain why, in 2008, Schwab received the lowest ranking possible by the Allegheny County Bar Association. It might also explain why, in 2011, Schwab was accused of bias so many times, he had to recuse himself fromseventeen ongoing cases.
In my forty years as an attorney, I’ve never heard of any judge, at any level, having to recuse themself from so many ongoing cases. It just doesn’t happen—unless we are talking about Judge Arthur Schwab.
Orin Kerr at the Washington Post, with a post entitled “Unless I’m missing something, this is an exceedingly strange opinion“:
I was astonished by the legal contortions that Judge Schwab undergoes to get to the point that he can rule on Obama’s policy — and then the way he backs off the implications of his own ruling. Unless I’m just missing something unique to immigration law, it’s an exceedingly strange opinion…based on my read, Judge Schwab struck down a policy that wasn’t actually before him, and then he wrote the rest of his opinion assuming that his own ruling was wrong. I’m not sure I’ve ever seen anything quite like it.
And here’s Andrew Rudalevige at the Washington Post, writing about “Immigration activism–from the bench“:
Given the circumstances of the case, it tells us little about the likely legal fate of Obama’s executive actions. Instead, it shows that judicial activism can come from any place on the political spectrum.
This is the first court decision on this topic, and one might wonder whether the temptation of that fact alone accounts for the ruling. For only the judge, of all the actors in the case, felt the Obama action was relevant to its outcome…
The best line in the opinion might be turned on itself. After quoting extensively from Obama’s November 20 address, Judge Schwab quips (p. 17) that “the sole citation to authority in the president’s speech was from the Old Testament.”
But of course a presidential speech is not meant to be a legal brief, or a court opinion.
A court opinion … well, it’s not meant to be a speech.