Executive Amnesty: The Court Battle Begins

by Dish Staff

ICE Detains And Deports Undocumented Immigrants From Arizona

Ruling in what otherwise would have been a fairly straightforward deportation hearing, District Judge Arthur J. Schwab issued an opinion (pdf) yesterday declaring President Obama’s executive action on immigration unconstitutional. Lyle Denniston explains Schwab’s ruling, which could send the matter to the Supreme Court sooner than expected:

“The President may only ‘take care that the laws be faithfully executed’; he may not take any Executive action that creates laws.” The new policy, the judge went on, is not an exercise of presidential discretion on when to prosecute individuals for a violation of the nation’s laws, but was in fact a legislative action beyond the president’s constitutional authority.

Instead of being a form of case-by-case judgment about which individuals are to be deported, Judge Schwab found, the policy “provides a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications.” Rejecting the government’s claim that the policy only delays deportation and does not create any new legal rights for those who benefit from it, the judge declared that the policy provides those who qualify with “substantive rights.” He ultimately concluded: “President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and, therefore, is unconstitutional.”

As Sahil Kapur points out, Schwab is no stranger to controversy. Ian Millhiser picks apart the judge’s argument:

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.

Ilya Somin is not persuaded by Schwab:

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.

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.

Neither is Jonathan Adler:

It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country.  This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful.  The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action.  It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution.

Overall, Orin Kerr finds the opinion bizarre:

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.

As it happens, the ruling dropped on the same day as this piece by Somin, arguing that Obama’s actions are entirely constitutional:

Because of the enormous scope of federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute. Far more violators are ignored than punished—or even investigated. … Article II of the Constitution states that the president must “take Care that the Laws be faithfully executed.” But that requirement does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.

Allahpundit, for one, doesn’t buy it:

The question is this: Whom would you rather see punish O for that, the courts or the voters? In theory, there’s already a check on the president in all this — voters can simply express their disgust by refusing to vote for him or his party’s successor next time around. But that means, without a judicial or legislative counter, we’ll have to endure this power grab for two more years with no remedy. Is that tolerable?

But it’s hard to see this ruling standing when even Bushies like John Yoo oppose it:

To be clear, Yoo’s objection to Schwab’s decision is entirely procedural. Yoo, who once argued that the executive can use many forms of torture despite the fact that federal law explicitly forbids such activities, believes that President Obama’s decision to allow immigrants to remain united with their families is executive overreach. Yet Yoo also criticizes Schwab for opining on the immigration policy’s constitutionality when the issue was not properly before his court. As Yoo notes, “[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.” Thus, 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.”

(Photo:: A Honduran immigration detainee, his feet shackled and shoes laceless as a security precaution, boards a deportation flight to San Pedro Sula, Honduras on February 28, 2013 in Mesa, Arizona. By John Moore/Getty Images)