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Constitutional Law

Obama's immigration order is unconstitutional, judge rules; parties didn't raise the issue

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A federal judge in Pittsburgh has struck down President Obama’s executive order on immigration, even though a prosecutor and defense lawyer had argued the executive action didn’t apply to the criminal case before the judge.

U.S. District Judge Arthur Schwab said the executive action halting deportations for millions of immigrants violates constitutional separation of powers and the take-care clause, report the Wall Street Journal Law Blog, the Legal Intelligencer, Politico and CNN. The Law Blog posted the ruling here (PDF).

“This executive action ‘cross[es] the line,’ constitutes ‘legislation,’ and effectively changes the United States’ immigration policy. The president may only ‘take care that the laws be faithfully executed …’; he may not take any executive action that creates laws,” Schwab wrote.

“President Obama’s November 20, 2014 Executive Action goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.”

Schwab ruled in the case of Honduran immigrant Elionardo Juarez-Escobar, who pleaded guilty to illegally re-entering the country after a previous deportation. Schwab had asked the parties to brief the constitutional issue, but both the government and the defense lawyer said the executive action did not apply in a criminal case.

Schwab, however, said he needed to address the constitutional issue because the criminal case before him significantly impacts any civil deportation proceeding.

Washington University law professor Stephen Legomsky said the opinion “is definitely an outlier. I have no reservations about saying that.”

How Appealing links to additional coverage here and here.