Constitution Check: Is Obama’s new immigration policy already in legal trouble?

The National Constitution Center’s constitutional literacy adviser, Lyle Denniston, explains how a federal judge’s ruling in Pittsburgh about President Obama’s immigration orders could be a sign of things to come.

obamaimmigration
obamaimmigration

THE STATEMENTS AT ISSUE:

“[President Obama’s] Executive Action crosses the line, constitutes legislation, and effectively changes the United States’ immigration policy. The President may only ‘take Care that the Laws be faithfully executed…’; he may not take any Executive Action that creates laws….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.”

– Excerpts from a ruling Tuesday by a federal judge in Pittsburgh, Arthur J. Schwab, declaring that the President had no constitutional authority to act on his own to order delays of deportation for more than 4 million undocumented immigrants. This was the first court ruling on the validity of the November announcement of the sweeping new immigration regulations.

“The judge is clearly reaching beyond the bounds of the case before him to engage in constitutional scrutiny of the executive actions,” said Peter J. Spiro, a law professor at Temple University in Philadelphia, noting that the new policies had not gone into effect yet. “It involves a lot of judicial gymnastics for the judge to get to that question.”

– Comment from the Temple law professor as quoted in The New York Times on Tuesday, in a story about Judge Schwab’s decision.

WE CHECKED THE CONSTITUTION, AND…

Deeply resentful of the arbitrary actions of English kings, the Founders who wrote the American Constitution were determined to split up power in the new national government they were creating. While the three branches are not totally sealed off from each other, they do have distinct powers and they are not supposed to exercise authority given to another branch. This is part of the checks-and-balances approach. But knowing when that separation principle has been violated has been an evolving issue ever since the Founding and remains unresolved today.

In recent months, America’s governing officials in Washington have been locked in a struggle over whether President Obama has been exceeding the powers of the Executive Branch; that struggle has grown especially intense over Obama’s initiatives on immigration policy.

While Congress and the White House have been the main combatants on this issue, the courts were being slowly drawn into the middle of it, with the filing of several lawsuits contending that President Obama had exceeded his authority by deciding to allow more than 4 million undocumented immigrants, who had entered the country illegally to remain in the U.S. for perhaps three years and to get jobs.

Given how slowly the wheels of justice often turn, it had appeared that it would take months for the judiciary to take a stand on the Obama initiative; the constitutional question might not be answered by them at least until late in the Obama presidency. That expectation ended suddenly on Tuesday, when a federal judge in Pittsburgh found a way – a highly unusual way – to move into the middle of the constitutional controversy.

District Judge Arthur J. Schwab ruled that the President had crossed the line into Congress’s legislative territory, and had actually – in the judge’s view – adopted the equivalent of new legislation on immigration policy. The judge had allowed himself to raise that constitutional issue because, he said, the new policy might have a bearing on the case before him of a Honduran national who was facing deportation for having illegally entered the country after being deported earlier.

As it turned out, however, the judge did not really strike down the new Obama policy – at least not in the usual way of judicial nullification of a federal law. The judge did not order the government to abandon plans to enforce the policy, and, in fact, proceeded to write the remainder of his ruling as if the policy were valid. In the binding part of the ruling, Judge Schwab gave the Honduran immigrant a chance to drop his guilty plea and, if he wished, to try to take advantage of the new deferral of deportation that soon would be available for at least some individuals who are in the country illegally. There is a chance, the judge said, that the policy might create an opening in the Honduran’s situation.

The ruling, as it stands at this point, does not appear to be a direct constitutional threat to the President’s initiative. That is because the judge’s statements about unconstitutionality may not have been critical to the bottom line of his ruling: the Honduran may get to stay in the U.S., at least for a time.

Many readers of the judge’s opinion, however, will have difficulty reconciling its two main parts: on the one hand, there are the stern comments about the President supposedly having used constitutional power he did not have, while, on the other hand, there is the judge’s formal declaration that maybe the policy is lawful, after all.

The ruling came as a considerable surprise to the Obama Administration, because its lawyers had told Judge Schwab that the new deferred deportation policy is not supposed to apply at all to criminal cases, like the one involving the Honduran immigrant. Now, administration lawyers have to decide what stance to take when that case unfolds further, in January

If the Administration is upset by the judge’s ruling, as it very likely is, it is not yet clear just what options are available. An appeal at this point might be premature, and a plea to the judge to reconsider might well be futile.

Beyond the Administration, however, the rest of America has learned that the federal judiciary may become an obstacle to the new Obama immigration policy, and that this prospect may be unfolding much earlier than expected. That could mean that the Supreme Court will be pulled into the constitutional debate fairly soon.

The Supreme Court so far has been on the sidelines of the current White House-Congress struggle over immigration policy. The Supreme Court refused, on Wednesday, to examine even a small part of that dispute, when it turned aside – without explanation – a request by the state of Arizona seeking permission to deny driver’s licenses to undocumented immigrants who will benefit from at least some aspects of the Executive Branch’s new initiatives on immigrants and their legal opportunities in the U.S. But, even in that modest judicial action, there was a glimmer of a threat to the Obama policy: three Justices dissented, indicating that they would have granted Arizona’s request.

At this point, the debate in the near term will continue to go forward when a new Congress arrives in Washington, and when the government and Judge Schwab take their next steps in the test case in Pittsburgh.

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