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Eager Judge Declares Obama's Immigration Plan Unconstitutional

By William Peacock, Esq. on December 17, 2014 | Last updated on March 21, 2019

This guy. How badly did he want to make headlines?

Late last month, President Barack Obama announced that he would use executive orders to push through certain immigration reforms. Republicans screeched. Congress bemoaned the trampling of their authority. States' attorneys general filed a lawsuit. Even a few members of the president's own party quietly questioned the move.

Even still, the most surprising voice has to be Judge Arthur Schwab of the U.S. District Court for the Western District of Pennsylvania, who has somehow found a way to rule on the constitutionality of Obama's actions mere weeks after they were announced.

Supplemental Briefing

How did Judge Schwab pull a rabbit out of his hat and declare Obama's new immigration plan unconstitutional? He ordered supplemental briefing in the case of 42-year-old Honduran immigrant Elionardo Juarez-Escobar, a man facing charges of (and who pleaded guilty to) illegally re-entering the United States after deportation, reports The Volokh Conspiracy.

Note that Juarez-Escobar's attorney didn't raise the issue -- Schwab did, as he thought that the new policies might apply and provide relief to the defendant. The government said that Obama's order doesn't apply to criminal proceedings, so the issue should not have arisen.

Nonetheless, it did, and Judge Schwab was was not kind to President Obama. Schwab held that the executive action violated principles of separation of powers and the separate "take care" clause, which requires the president to execute laws passed by Congress.

Is Judge Schwab Right?

That's not an easy question, and it is one that will be litigated for years to come -- or until another president or Congress reverses the policy and makes the issue moot.

Still, expect this to be the new "Obamacare" in that there will be lawsuits early, often, and indefinitely.

For now, we'll rely on a couple of experts from The Volokh Conspiracy blog: Professors Jonathan H. Adler and Ilya Somin have both opined that the president's immigration plan is constitutional.

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