District Court Judge Declares Executive Action on Immigration Unconstitutional

Well, you had to figure there would be at least one federal judge somewhere in the country who’d want to make sure he or she never had to pay for lunch again so long as a conservative activist was close enough to grab the check. Turned out it was Pennsylvania District Court judge Arthur Schwab, who found a pretext in a case involving criminal immigration law violations to declare the president’s recent executive action unconstitutional. Ian Millhiser of Think Progress, who has a low opinion of Judge Schwab’s legal acumen, lays it out for us:

In an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy, a George W. Bush-appointed judge in Pennsylvania declared President Obama’s recently announced immigration policy unconstitutional on Tuesday. Because the policy “may” apply to a defendant who was awaiting sentencing of a criminal immigration violation, Judge Arthur Schwab decides that he must determine “whether the Executive Action is constitutional.” He concludes that it is not.

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.

Until such time as this extraordinary act of judicial showboating is overturned, it will be a source of much conservative disinformation. And once Schwab is overturned, you can bet that will be cited as a fresh reason Congress has to do something to “stop” Obama, other than what they could have done long ago, which is to pass an immigration reform bill.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.