Pittsburgh judge uses case to say Obama executive order unconstitutional

12/19/2014

A federal judge's decision Tuesday in Pittsburgh to rule on a presidential executive order on immigration policy during a routine criminal case puzzled two legal experts.

“It's bizarre on a bunch of levels,” said Jonathan H. Adler, a Case Western University law professor and regular commentator on constitutional issues who has testified before Congress.

U.S. District Judge Arthur Schwab ruled that President Obama's frustration with Congress for refusing to pass his proposals on immigration doesn't give him the authority to usurp the exclusive right of Congress to write the nation's immigration laws.

The president's actions benefit about 4 million immigrants who have been in the United States illegally for more than five years but whose children are citizens or lawful permanent residents. After passing background checks and paying fees, those individuals will be able to seek three-year relief from deportation and get work permits.

In a 38-page opinion, Schwab said Obama effectively enacted a law that he couldn't persuade Congress to pass.

“Congress' lawmaking power is not subject to presidential supervision or control,” Schwab said in the criminal case against Elionardo Juarez-Escobar, 42.

Although Schwab's ruling will attract attention, it doesn't have much practical effect, Adler said.

Typically, when a judge rules that a law, regulation or government action is unconstitutional, the ruling is followed by an order barring the government from carrying out the action. In this case, Schwab didn't take that step, he said.

“It's not even clear Schwab is applying (the ruling) to his own case,” Adler said.

The president's directive addresses whether to prosecute, not what happens after the government decides to prosecute, Duquesne University law professor Wesley Oliver said.

“It has nothing to do with the issue before the court,” he said.

Schwab's ruling doesn't bind other federal judges, even in Pittsburgh, he said.

The Justice Department released a statement saying that Schwab's decision is “unfounded and the court had no basis to issue such an order.”

Neither Juarez-Escobar nor the U.S. Attorney's Office challenged the constitutionality of the president's executive action and federal prosecutors filed a brief making it clear that executive action doesn't apply to criminal cases, the Justice Department said.

New Sewickley police arrested Juarez-Escobar on April 7 on suspicion of drunken driving. A federal grand jury July 29 indicted him for illegally returning to the United States after he was deported from New Mexico in 2005.

He pleaded guilty to the federal charge Oct. 21.

In an unrelated lawsuit filed in a Texas federal court, 24 states have challenged the president's executive action.

Schwab's opinion contains some of the same arguments as the lawsuit, but more than 100 immigration scholars have disputed those claims, said Sheila I. Vélez Martínez, director of the University of Pittsburgh's Immigration Law Clinic.

“I was very surprised to see it coming from a criminal case,” she said.

The administration has broad discretion when it comes to immigration, not only in deciding who to prosecute for illegally entering the country but in deciding similar matters such as who gets visas, she said.

Schwab noted in his ruling that he would normally sentence Juarez-Escobar to time served and a suspended term of probation and order federal marshals to turn him over to Homeland Security for deportation proceedings.

Despite his ruling that the executive action is unconstitutional, the judge said that it might give Juarez-Escobar new rights. He gave Juarez-Escobar until Jan. 6 to decide whether to withdraw his guilty plea or ask for normal probation instead of being handed over to Homeland Security.

The government has until Jan. 12 to respond to whatever options Juarez-Escobar chooses, Schwab said.

Ruling that the executive action is unconstitutional but then giving Juarez-Escobar a chance to withdraw his guilty plea because of it is another bizarre twist, Adler said.

“If it's unlawful, then there is nothing for this defendant to take advantage of and there's no need to ask the defendant to reconsider his plea,” he said.

Oliver said it's likely that the government will appeal Schwab's decision and the 3rd Circuit will overturn it without addressing the question of whether the president's executive action is constitutional.

“I could easily see the 3rd Circuit saying that the constitutionality of the executive order is unrelated to the legitimacy of this (guilty) plea, so this judge did not need to rule on the constitutionality of the executive order,” Oliver said.

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