A federal judge in Pittsburgh, in the first court ruling on President Obama’s new policy on undocumented immigrants, ruled on Tuesday that, because the president had no authority to act alone, the policy is unconstitutional. If that part of the ruling by U.S. District Judge Arthur J. Schwab survives further review in lower courts, the issue could go to the Supreme Court much earlier than expected.
Although the judge flatly declared the November orders by the president and other U.S. officials to be unconstitutional, he did not bar the policy’s continued enforcement and, in fact, set up additional steps he plans to take in a pending case on the alternative view that the policy may actually be valid.
The judge’s highly complex ruling came in a totally unanticipated test case on the policy, involving a Honduran national who has pleaded guilty to the crime of returning to the United States after once being deported as an undocumented immigrant.
The president’s policy, which has been in effect for less than four weeks, gives some immigrants who have been in the United States illegally for years a chance to remain in the country by having their potential deportation put on hold. The policy may give a reprieve to more than four million foreign nationals living in the United States. The president has defended his action as necessary because, he said, immigration policy is broken but Congress has not acted to fix it.
The policy is hotly controversial in Congress, and the Republican leaders on both sides of Capitol Hill have vowed to take action to thwart it when the GOP takes control of the House and Senate in January. The policy also is under legal challenge in federal courts in Washington, D.C., and in Brownsville, Texas. Neither of those cases, however, is likely to unfold quickly.
Judge Schwab’s ruling, however, may develop rapidly, depending upon how the Obama administration reacts to it. The issue arose unexpectedly in that federal court on November 24, four days after the President announced the change in a nationwide address from the White House. On the same day, Judge Schwab ordered lawyers in a pending criminal case to file briefs on the potential impact of the new policy on that case. Those filings then led to Tuesday’s ruling against the policy.
Before Judge Schwab is the case of Elionardo Juarez-Escobar, now forty-two years old, who came to the U.S. illegally from his native Honduras in October 2005. He was arrested in New Mexico by the U.S. Border Patrol and was deported on December 5 of that year.
He later reentered the country later without permission and wound up in Pittsburgh, where his brother lives. His brother is a U.S. citizen and has employed him in a landscaping business for at least two years. In April of this year, Juarez-Escobar was stopped by a police officer in Pennsylvania after driving around a traffic stop, according to court records. He was charged with drunk driving and driving without a license.
In June, he was turned over to federal immigration officials, who concluded that he had reentered the United States illegally. He has been detained since July, and was charged with one count of illegally reentering the country after being removed earlier. He initially pleaded not guilty to that criminal charge, but then asked to change to a guilty plea.
While that request was pending before Judge Schwab, with a sentence to be imposed later, President Obama announced the new deferred deportation policy, and the judge then moved to consider whether it had any impact on the Juarez-Escobar case. The Justice Department told the judge that the new policy had no effect on criminal cases such as this one, but the Honduran’s lawyers argued that it might affect the case.
In his decision on Tuesday, the judge gave a stern lecture to the president on the need to execute the laws that Congress passes, rather than seeking to change the effect of those laws on his own. The opinion cited many comments that the president himself had made, before announcing the policy change, about his lack of authority to take such action.
Writing that the court was “bound to ensure that the Constitution’s structural safeguards are preserved,” the judge concluded that the policy was unconstitutional. “The President may only ‘take care that the laws be faithfully executed’; he may not take any Executive action that creates laws.”
The new policy, the judge went on, is not an exercise of presidential discretion on when to prosecute individuals for a violation of the nation’s laws, but was in fact a legislative action beyond the president’s constitutional authority.
Instead of being a form of case-by-case judgment about which individuals are to be deported, Judge Schwab found, the policy “provides a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications.” Rejecting the government’s claim that the policy only delays deportation and does not create any new legal rights for those who benefit from it, the judge declared that the policy provides those who qualify with “substantive rights.”
He ultimately concluded: “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.”
From that point, the judge moved on to analyze whether the policy — if valid — would apply to Juarez-Escobar. The judge commented that it might apply, as Juarez-Escobar’s lawyer had argued, because he might not be subject to early deportation and might even qualify for extended delay of any potential deportation, or perhaps qualify for asylum because of hostile conditions in his home country.
Therefore, Judge Schwab found, he should give Juarez-Escobar a chance to change his guilty plea back to not guilty, because of the possibility of deportation that could follow a criminal conviction.
Despite his declaration that the Obama policy was invalid, the judge said that, if it were understood to be lawful, it was the court’s duty to decide definitively whether Juarez-Escobar could benefit from it and, if so, the impact on his criminal case.
As a result, the judge announced this schedule: by January 6, Juarez-Escobar should choose whether to withdraw his guilty plea in light of the new government policy; leave his guilty plea intact and go forward to sentencing on January 22; or go ahead with sentencing and be turned over then to immigration officials, potentially to be deported.
If he were to choose the second option, Judge Schwab said, Juarez-Escobar would be sentenced only to the time he already has been detained, followed by a year of supervised release while living in the U.S., so that he could attempt to take advantage of the new policy.
Once Juarez-Escobar makes his choice, the judge ruled, the federal government must file a formal response by January 12.
The government presumably has the option of either going to a higher court to try to block that schedule or attempting to persuade Judge Schwab not to apply the new policy in this case — despite the judge’s determination already to do so, at least so far as it may have an impact on the sentencing issue.
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