A federal judge in Pennsylvania has
released an opinion in a case of a deported illegal alien who returned to the
U.S. that appears to torpedo the amnesty plan President Obama announced Nov. 20
and implemented through memos to government officials, ruling it
unconstitutional.
“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,” said
U.S. District Judge Arthur J. Schwab.
The judge noted Obama “contended that although legislation
is the most appropriate course of action to solve the immigration debate, his
executive action was necessary because of Congress’s failure to pass
legislation, acceptable to him, in this regard.”
“This proposition is arbitrary and does not negate the
requirement that the November 20, 2014, executive action be lawfully within the
president’s executive authority,” the judge wrote. “It is not.”
Quoting from a previous precedent, the just said that in the
“framework of our Constitution, the president’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker.”
“The Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and the vetoing of laws he
thinks bad,” Schwab said.
The judge said Obama’s contention that Congress had not
worked in his time frame was largely irrelevant.
“Would it be permissible for a president, who was
dissatisfied with a high tax rate on long term capital gains (as limiting
economic growth), to instruct the IRS to only collect taxes at a rate of 15
percent rather than the legislative prescribed 20 percent rate, or defer
prosecution of any taxpayer who pays at least 15 percent but not the full 20
percent, unless Congress ‘pass a bill’ lowering the rate within a specified
time period? Both this IRS scenario and the executive action at issue in this
case violate the separation of powers.”
The judge said Obama has stated that his orders no longer
will be necessary when Congress passes a bill meeting his requirements.
However, the judge ruled, “presidential action may not serve
as a stop-gap or a bargaining chip to be used against the legislative branch.”
“While ‘the power of executing the laws necessarily includes
both authority and responsibility to resolve some questions left open by
Congress that arise during the law’s administration,’ it does not include
unilateral implementation of legislative policies,” he said.
And Obama’s own “belief” about his power also is not
relevant.
“Obama’s belief that this executive action is within his
executive authority is not dispositive because ‘the separation of powers does
not depend on the views of individual presidents, nor on whether the
encroached-upon branch approves the encroachment,’” said the judge.
Obama has claimed his move falls under “prosecutorial
discretion,” but the judge batted down the argument.
“The executive action establishes threshold eligibility criteria
before undocumented immigrants can apply for deferred action status. … The
Office of Legal Counsel acknowledged that this class-based program and
threshold criteria was problematic, but concluded that the program does not ‘in
and of itself’ cross the line between executing the law and ‘rewriting it,’”
the judge wrote.
But, he said, “such formulaic application of criteria,
especially given the wide breadth of the program, in essence, substantively
changes the statutory removal system ‘rather than simply adapting its
application to individual circumstances.’”
Further, he noted, while the earlier deferred action program
has a provision that it can be terminated at any point, Obama’s new order does
not allow termination.
In the case before him, regarding the return to the U.S. of
the illegal alien, Elionardo Juarez-Escobar, the judge said the defendant
pleaded guilty to the felony of re-entry of a removed alien. But the judge said
the facts of the case are complicated.
So he ordered that by Jan. 6, 2015, the defendant must file
a motion and brief seeking to withdraw his guilty plea, continue to sentencing
Jan. 22 to time served and pursue his rights, if any, under Obama’s order, or
continue to sentencing, with instruction to the Marshal Service to deliver him
to ICE.
Commentator Jonathan Adler wrote
at the legal blog Volokh Conspiracy
that this it “the first judicial opinion to address Obama’s decision to expand
deferred action for some individuals unlawfully present in the United States.”
The opinion also notes that it reviews the law and actions
as it applies to the particular case.
“This isn’t the only case challenging the lawfulness of the
Obama’s immigration actions. Some two-dozen states have filed suit challenging
Obama’s recent immigration policy reforms. Led by Texas, these states claim
that the president as exceeded the scope of executive authority in this area,”
Adler wrote. ” As I’ve noted before, I’m skeptical of these arguments on the
merits (as is Ilya), and wonder whether the states will be able to satisfy the
requirements of Article III standing to bring their claims. Yet as this case
shows, even if the states don’t have standing, the legality of the president’s
actions could nonetheless be decided in federal court.”
Adler noted that it is unusual for a district court to
“reach this sort of constitutional issue in this sort of case. Indeed, Judge
Schwab appears to have reached out quite aggressively to engage the lawfulness
of the president’s actions. Based upon the procedural history recounted in the
opinion, it appears the court requested briefing on the applicability of the
new immigration policies on its own order. That is, the issue was not initially
raised by the defendant in his own defense. As a result of the court’s
decision, however, the defendant now has the option of withdrawing his guilty
plea and potentially seeking deferral of his deportation under the new policy.”
Adler said he didn’t agree with the judge’s conclusion that
congressional action is not subject to presidential supervision.
The Justice Department said the ruling was “unfounded” and
the judge didn’t have the authority to make such a decision.
http://www.wnd.com/2014/12/federal-judge-obamas-amnesty-unconstitutional/
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