You Won’t Believe What This Federal Judge Did to Obama’s #ImmigrationAction

Dec 18, 2014
9:34 AM

The short of it: On Tuesday, U.S. District Judge Arthur Schwab, an appointee of George W. Bush, declared President’s Obama’s executive action on immigration unconstitutional.


As in struck down. Illegal. Void. Invalid. No good.

The long of it: The decision is procedurally strange at best, and indefensible at worst. Meaning that it’s highly likely an appellate court will reverse it altogether and things will return to when we only had the Greg Abbott and Joe Arpaio lawsuits to worry about. Those cases challenging the president’s immigration order are still moving through the courts and will be for some time.

But this other case out of Pennsylvania is weird and different because it didn’t involve states freaking out about the president’s new policy. Rather, the matter arose in the context of a criminal case—that of Elionardo Juárez-Escobar, a Honduran man who was convicted of illegal reentry, a very common federal offense.

While Juárez-Escobar awaited sentencing, the court took the unusual step to request “legal briefing” from his lawyer and the federal government on whether President Obama’s executive order should be considered at sentencing. But the judge also asked the parties if there were any constitutional issues that applied to Juárez-Escobar.

These were odd requests because a sentencing, like any other part of the criminal process, is adversarial in nature, and it requires parties to raise individual issues for the court to address. Here, neither Juárez-Escobar nor the federal government raised the president’s executive order, let alone whether it was constitutional. The judge went there all by himself.

In any event, the parties complied with the judge’s request, but neither seemed to have addressed the legality of executive action. Again, that didn’t matter to the judge, and he went there anyway, engaging in a lengthy discussion about the constitutionality of the immigration order. He wrote about separation of powers under the Constitution, the substance of the order’s various provisions, Obama’s own statements in the press and elsewhere about his executive authority, and other considerations for which he provides little to no legal precedent.

The bottom line: The president’s executive order is unconstitutional.

What’s strange is that after reaching this conclusion, Judge Schwab went on to determine whether Juárez-Escobar would qualify for deferred action on his impending deportation. It’s weird that he would even attempt that because that’s the province of an immigration judge. Schwab again didn’t seem to mind, and ruled that Juárez-Escobar “is not conclusively within one of the newly created and/or expanded categories for deferred action status.”

If you’re bored or your head is spinning by now, that’s perfectly understandable. It’s truly amazing the reasoning and contortions Schwab resorted to in reaching his conclusions, many of which cite to no Supreme Court precedent or statutes for support. Ian Millhiser, the legal editor at ThinkProgress, called the judge’s reasoning “thin,” while Prof. Jonathan Adler, writing at The Volokh Conspiracy blog, noted the judge “reached out quite aggressively to engage the lawfulness” of Obama’s immigration order, calling the end result “anomalous.”

Meanwhile, as The Huffington Post reports, it looks like the Department of Justice is getting ready to respond to the ruling, possibly in the form of an appeal.

We’ll see what happens. For now, we’re only left to wonder why a judge with a beef with presumptive presidential overreach would resort to judicial overreach to strike it down.


Cristian Farías is a writer and lawyer. You can follow him @cristianafarias.