In a very odd situation, a federal judge said that President Obama’s immigration orders are unconstitutional — but did so in a case where they weren’t being challenged or even brought up at all, and the ruling has no effect at all on the legal status of those orders.
The ruling was in a criminal case against a Honduran national named Elionardo Juarez-Escobar who is in the country illegally. After being deported once, he returned illegally and is now on trial. He was found guilty and was facing sentencing. Neither the defendant nor the government ever raised the issue of the immigration order at all. The defendant did not try to argue that the order covers him and therefore he should be set free. But the judge ordered the two sides to file briefs on the issue anyway, which is very, very unusual.
It gets even more unusual because Judge Arthur Schwab then declared that order unconstitutional but still said that the defendant had a right to raise the issue and argue that it moots the criminal charges against him in a separate proceeding. The question of the constitutionality of those orders is completely irrelevant and his ruling does nothing at all to effect them because that simply wasn’t at issue in the case, but he chose to vent, with considerable stridency, his opinions on it anyway. It’s quite bizarre. Jonathan Adler notes the very weird nature of the ruling:
It is quite 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…
As I think about Judge Schwab’s opinion a bit more, it seems to me to be an advisory opinion. Neither party to the proceeding raised the issue and, as far as I can tell, neither party sought to have the President’s actions declared unlawful. So there was no case or controversy presenting this question. This could explain the anomalous nature of Judge Schwavb’s disposition of the case: After declaring the President’s actions to be unlawful, he nonetheless issued an order giving the defendant an opportunity to seek to claim the benefit of the new policy (assuming the defendant could demonstrate that he qualifies). In other words, while Judge Schwab declared the President’s actions to be unlawful, he did not set it aside. Indeed, given that no party was challenging the lawfulness of the President’s action, it’s not clear what authority the court would have had to invalidate the policy.
Even had the court had jurisdiction over this issue, it’s still not clear what sort of relief would be appropriate. Could the court set aside the new executive branch policy? If so, what precisely would that mean? Unless a court is willing to invalidate all deferred action, and order the deportation of all those unlawfully in the country, it’s not clear what it would mean to set aside the President’s directive. The executive branch would still be able to consider deferred action and provide work permits on a case-by-case basis — and this would leave the executive branch with the authority to prioritize “families over felons” and otherwise effectuate the policy preferences embodied in the President’s actions.
Bizarre is the only word to describe this. Elise Foley, a former AINN colleague, and Ryan Grim point out that this judge has a history of such strange behavior:
The judge, who has a highly unusual history of being removed from cases due to temperament and charges of bias, was not asked to rule on the issue and instead inserted his opinion into a criminal case.
Schwab was removed from a case in 2008 to bring about what a higher court called “a reduced level of rancor,” a rare if not unprecedented move that a law professor told the Pittsburgh Tribune-Review at the time was “considered to be a disciplinary action.” He was pulled from a case again in 2012. Schwab recused himself from 17 ongoing cases in 2011 because of bias allegations.
This is all just really, really weird, perhaps unprecedented. I’m absolutely baffled. You can read his ruling here.