- The Washington Times - Tuesday, December 16, 2014

A federal judge Tuesday ruled parts of President Obama’s deportation amnesty to be unconstitutional, with a scathing memo dismantling the White House’s legal reasoning and arguing that Mr. Obama tried to steal Congress’ lawmaking powers.


The ruling doesn’t invalidate the policy immediately because it was part of a case over a single illegal immigrant’s deportation, but it could serve as a road map for other federal judges who are considering direct challenges to the president’s policy.

Judge Arthur J. Schwab, sitting in the Western District of Pennsylvania, said Mr. Obama has some discretion in how to enforce laws, but by setting out a comprehensive system to grant tentative legal status to as many as 5 million illegal immigrants, the president has strayed into trying to write the laws, which is a power reserved for Congress.

“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,” Judge Schwab wrote.

Immigrant rights advocates said the ruling was a shocking overstep of the court’s authority. Indeed, the Obama administration has argued in federal court in Washington that judges have no power to review the president’s decision-making.

SEE ALSO: Amnesty fight: Obama admin tells courts they’re powerless to stop executive order

Judge Schwab issued the ruling the same day the Senate voted to confirm Mr. Obama’s pick to head U.S. Immigration and Customs Enforcement, the agency that the president instructed to stand down on most deportations.

Sarah R. Saldana was confirmed on a near party-line vote, overcoming objections from Senate Republicans who said approval of the nomination amounted to a show of support for the president.

Mr. Obama’s policy would allow up to 5 million illegal immigrants to apply for “deferred action,” a proactive notice that they won’t be deported, and would grant work permits to allow them to compete for jobs legally.

To qualify, illegal immigrants would need to show they were brought to the U.S. as children, or to show that they have children who are either U.S. citizens or legal permanent residents of the country.

The White House defends the policy as a reasonable use of Mr. Obama’s powers to set priorities for enforcing laws, and to stop the breakup of families because of deportation.

It now faces multiple legal challenges in federal court in southern Texas and one in Washington, D.C.

SEE ALSO: Obama amnesty in jeopardy with Bush judicial appointee hearing states’ challenge

The D.C. challenge, filed by Sheriff Joe Arpaio of Maricopa County, Arizona, is moving quickly. The judge has scheduled a hearing on a preliminary injunction next week.

The Obama administration filed a brief late Monday in the D.C. case defending the policy.

Joyce R. Branda, the acting assistant attorney general who is leading the case, argued that Congress has provided too little money and the administration can deport fewer than 400,000 immigrants a year out of the total population of more than 11 million.

Ms. Branda said given that, it makes sense for Mr. Obama to set priorities, including proactively telling millions of illegal immigrants that they are in no danger of being kicked out. That policy allows immigration agents to focus on the other illegal immigrants whom the president deems serious cases, or on those crossing the border this year and beyond.

“Federal courts sit to decide cases and controversies, not to resolve disagreements about policy or politics,” the administration’s attorney said.

Indeed, one major hurdle for those challenging Mr. Obama’s policies is showing that they have standing to sue by proving they have been injured. Sheriff Arpaio says he will be injured because Mr. Obama’s policy will mean more illegal immigrants in his county committing more crimes and using more services — an argument some lawyers doubted would carry weight with the court.

The Pennsylvania case suggests, however, that others could have standing to sue and signals that the president’s legal argument may not be as strong as Mr. Obama has asserted.

One of the administration’s key arguments is that the policy doesn’t create any rights and that the illegal immigrants who gain tentative status could be deported at any time.

Judge Schwab refuted that, saying Mr. Obama couched his policy as a moral imperative to keep families together, so it is not easy to reverse.

The judge also repeatedly used Mr. Obama’s own words against him. He listed the times the president said he didn’t have the power to take the kinds of actions he has now taken.

The case before Judge Schwab, who was appointed to the bench by President George W. Bush, involved an illegal immigrant, Elionardo Juarez-Escobar, who was deported in 2005 but sneaked back into the U.S. and ended up in Pittsburgh, where his brother, a U.S. citizen, owned a landscaping company.

Juarez-Escobar went to work for his brother but was snared in a traffic stop by local police this year. He was reported to federal authorities, who charged him with re-entering the U.S. illegally.

Judge Schwab wanted to know why Mr. Obama’s amnesty didn’t apply to Juarez-Escobar, who pleaded guilty to the illegal re-entry charge. Judge Schwab has said Juarez-Escobar could be allowed to change his plea.

The judge questioned why Mr. Obama’s policy applied only to parent-child relationships and not to Juarez-Escobar, who has a “close bond” with his brother.

The judge said Juarez-Escobar appears to be “more ‘family’ than ‘felon,’” which would seem to make him a low priority under the president’s deportation policies.
Immigrant rights advocates said the judge was stretching the limits of the case to rule against the president.

“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,” said David Leopold, a former president of the American Immigration Lawyers Association. “I’m confident that this ill-advised and poorly reasoned opinion will be corrected by the Court of Appeals.”

The Justice Department didn’t respond to a request for comment on the decision.

In the D.C. case, administration attorneys argued that the policy is designed to carry out, not to thwart, what they believed was Congress’ intent that the Homeland Security Department go only after recent border crossers and more serious criminals in the interior of the U.S.

The Justice Department also disputed Sheriff Arpaio’s claim that the policy would lead to more illegal immigration.

Larry Klayman, an attorney for Sheriff Arpaio, said the judge in that case should grant a temporary injunction to halt the policy.

“We’re seeking to preserve the status quo, and there’s absolutely no harm to the Obama administration and the government to preserve the status quo,” Mr. Klayman said. “They are rushing to create law, unconstitutional law, in effect, claiming they have an unbridled right as a policy to do whatever they want because they’re trying to jump the gun on the new Congress.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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