Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 20, 2014

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After drawing strong criticism from Republican lawmakers, President Obama’s executive action on immigration reform took a hit last week when a federal judge in Pennsylvania found the President’s efforts to be unconstitutional. The decision comes in a criminal case involving a defendant who had reentered the country illegally after deportation, but the result will likely be considered by judges facing the handful of challenges to the President’s action filed by state Attorneys General.

President Obama’s Executive Action on Immigration

Last month, Mr. Obama announced a new approach to immigration that offered a path to citizenship which has been opposed by his critics both in Washington DC and throughout the country.  Most controversial of the new policies was the Executive’s declaration that the Department of Justice (DOJ) would decline to pursue deportation of undocumented immigrants who have lived in the country for more than five years.  By allowing these individuals to “come out of the shadows” without fear of federal prosecution, Mr. Obama laid forth a pathway to American citizenship that he argued would provide opportunity for men and women on the fringes of society to contribute to the American economy.

Within hours of the announcement, Conservative lawmakers criticized the President by calling his immigration action an overreach of his authority.  Claiming the President does not have unilateral authority to set immigration policy, Republicans denounced Mr. Obama as acting beyond the scope of the Constitution.  In a fairly unusual setting, Judge Arthur Schwab took the opportunity provided by a criminal case to create the first legal barrier to the President’s immigration reform plan.

Federal Judge finds Immigration Action Unconstitutional

At issue in front of Judge Schwab was the sentencing of an undocumented alien who had been caught sneaking back into America after being deported.  In preparation for the sentencing hearing, the court requested preparation of legal briefs on how the President’s new policy may provide the defendant with additional avenues to avoid a second deportation.  Citing Mr. Obama’s policy of deportation deferral by way of non-prosecution, attorneys supporting the defendant advanced an argument that he may be a good candidate to remain in America under the new approach to immigration.

Using the opportunity to speak to the President’s action broadly, Judge Schwab denied the possibility of deferred deportation by claiming that the underlying declaration on which it was based lacked constitutional authority.  Judge Schwab, a 2002 George W. Bush nominee to the bench, found that the President’s policy goes “beyond prosecutorial discretion” because it provides a framework for the DOJ to avoid pursuing deportation rather than evaluating decisions on a case-by-case basis – a component that prosecutorial discretion usually requires.  Because Mr. Obama’s policy goes beyond his authority to simply instruct the DOJ on how to prosecute immigration cases, Judge Schwab 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.”

Finding that the systematic process for declining to prosecute undocumented aliens was an unconstitutional display of executive action, Judge Schwab offered the first significant legal opinion on the issue.  Interestingly, whether or not Judge Schwab acted within his authority will be a question as his opinion is debated by higher courts and legal scholars.

Judge Shooting Down Immigration Policy Acted Unusually

While Judge Schwab has the authority to make decisions on the constitutionality of federal action, the pathway to his decision raises questions.  In advance of the sentencing hearing that enabled him to find the President’s immigration action, it was Schwab that requested legal briefs on how the new policy may apply – meaning the Judge introduced the issue into the case only to take the opportunity he had provided himself to speak on the constitutionality of the immigration policy.  While this unusual procedural step does not necessarily invalidate Judge Schwab’s decision, it does raise questions about his motivation, and potentially his credibility while other courts debate the issue in more relevant settings.

Federal courts will soon get the opportunity to take on President Obama’s immigration action directly as 12 states, led by Texas, have filed legal challenges alleging the executive action was unconstitutional.  While the challenges to Mr. Obama’s policy acknowledge a failing in America’s immigration system, the states claim that the issue warrants remedy from Congress rather than a unilateral Presidential decree.  While Judge Schwab’s out-of-context legal decision on the new immigration plan will undoubtedly provide interesting arguments for future federal courts, his decision will not have control over future outcomes.  Regardless of questions about the ultimate effect of Judge Schwab’s decision, it is a significant indicator that President Obama’s policy will not go smoothly into effect.