- A federal judge in Pennsylvania's Western District has just declared that Obama's recent executive actions on immigration are unconstitutional.
- 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.
- 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.
- 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.
- The official lawsuit against Obama's executive actions, led by 24 state attorneys general, is currently sitting in the Southern District of Texas.
What is Judge Schwab's argument for declaring the executive actions unconstitutional?
1) Just because Congress didn't do anything doesn't mean the President can. The judge interprets Obama's comments when he issued the executive actions, saying that "The day Congress passes a bill, (these) will no longer be necessary," as a confession that his actions were the equivalent of a legislative action. Judge Schwab explicitly says that Obama's actions "constitute legislation," and refers to them as "legislative actions" in the ruling.
2) The executive actions are too defined in their standards for who is and isn't eligible for protection from deportation. Ironically, this turns one of the Administration's own arguments on its head. The White House has argued that its new programs fall within the president's authority to protect immigrants from deportation on a case-by-case basis — even though they could end up granting "deferred action," or three years of protection from deportation and work permits, to millions of unauthorized immigrants. Their reasoning for this is that they're setting specific guidelines for who will and won't be eligible to apply for deferred action, so that they're not just issuing blanket protections to a whole group.
Judge Schwab's opinion says that, to the contrary, setting "a systematic and rigid process" for people to apply for deferred action is exactly what violates "case-by-case" discretion. That's because, in his opinion, it eliminates the ability of individual immigration agents to decide who should and shouldn't qualify,
This video provides a two-minute primer on Obama's immigration actions:
Would the immigrant in this case even be eligible for protection from deportation under Obama's actions?
Not for the parts of Obama's plan that are under heaviest attack from Republicans and conservatives, no. The most controversial action the president took in November is the expansion of "deferred action" programs, which grant three years of protection from deportation with a work permit, to millions of unauthorized immigrants. But this defendant wouldn't meet the criteria for deferred action.
He wouldn't be eligible for the program the Obama administration is creating to grant "deferred action" to parents of US citizens or permanent residents. Nor would he be eligible for the Deferred Action for Childhood Arrivals program, which gives the same protections to unauthorized immigrants who arrived in the US before they were sixteen.
So how are Obama's executive actions even relevant to this case?
Judge Schwab is focusing on another aspect of the Obama administration's actions — a memo setting out new priorities for deportation. The judge claims that under the new priorities, the immigrant in this case wouldn't be a priority for deportation. Therefore, the opinion says, the immigrant is in a no-man's-land between deferred action and deportation. Pivoting off President Obama's statement that he wants to deport "felons, not families," the judge then declares that the immigrant is "more family than felon" — closer to protection than he is to deportation.
But the immigrant was convicted of a crime, right? That's why he's being sentenced in federal court?
Yes. The judge's statement that the immigrant is "not a felon" makes no sense. He's just been convicted of a federal felony — illegally reentering the US after deportation. Under the new executive actions, immigrants might be getting charged with illegal reentry less often (certainly in places far from the border like Pennsylvania), but the executive actions don't apply to people who have already been brought into court.
The tricky part is that the conviction won't be final until the defendant is sentenced. And sentencing is what the federal judge is doing right now. So since the conviction hasn't been finalized, the judge is claiming he's in the same position as someone who's never been convicted at all.