It’s only the first court of many that will review the order, so it’s nothing to get horribly excited about, but one Federal district court in Pennsylvania has declared that some aspects of President Obama’s executive action on immigration go beyond mere “prosecutorial discretion” and are therefore unconstitutional.
Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority.
This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States.
The case that this particular opinion sprung out of is intriguing: it has to do with an immigrant who was deported, but then re-entered the country illegally. Before the court declared that he should be deported again, the court asked for a briefing on how Obama’s new policies would impact the immigrant, and whether they provided a way for him to avoid deportation. According to the Washington Post‘s legal experts, the Constitutional evaluation of Obama’s program wasn’t necessary, but the court decided to do it anyway, which is good, because in this case, a defendant facing deportation would actually have standing to bring a case. The problem with some of the other cases questioning the act’s constitutionality is that they’ve been brough by states, and those states may not actually be able to sue to stop this kind of Presidential action.
The reason this court reached the conclusion that it did was because it felt that, while the Executive Branch does have some prosecutorial discretion on how it handles (or whether it handles) the execution of laws in existing cases, it had gone so far to detail the execution of these laws that it created de facto legislation. Once the Executive Branch sets forth such a complicated rubric, it teeters into becoming legislation. And when the Executive Branch usurps the Legislative Branch’s job (even if it’s not technically doing it’s job), the Executive’s actions are unconstitutional.
In this case, the judge also argued that it’s not the job of the government to “gang up” on the individual, and while it may seem like an Executive can and should be able to step in when the Legislature is failing, that does not necessarily give him more power. And whether the Legislature is “failing,” is also a subjective determination; there’s no real emergency, and no urgency in pursuing legislation except for, perhaps, political expediency, so in this case, the court found, “failure” might actually be a legitimate option.
You can read the opinion here.