Politics & Policy

Lawless Judge, Lawless President

(Nikolay Mamluke, Zimmytws/Dreamstime)
He rules against Obama, but he too is flouting the Constitution.

Americans alarmed by Obama-administration lawlessness were further demoralized by last week’s “cromnibus” debacle. First, the Republican-controlled House voted to fund the government for the next year, surrendering its power of the purse as a check on the president’s excesses. Then, in what appears to have been part sympathy for Obama’s non-enforcement of the immigration laws and part fit of pique at having to work over the weekend, an astounding 20 Republican senators joined all the Democrats in rejecting a challenge to the president’s blatantly lawless decree of effective amnesty for millions of illegal aliens — a constitutional challenge spearheaded by Senators Ted Cruz (R., Tex.) and Mike Lee (R., Utah) that, shamefully, drew only 22 Republican supporters.

Conservatives are feeling angry and betrayed after working hard to give Republicans a runaway victory in last month’s midterm elections. It is only natural, then, that we were heartened by Tuesday’s news: A federal court in Pittsburgh ruled that Obama’s amnesty decree is unconstitutional.

We should disenthrall ourselves. This ruling, rendered in a 38-page opinion by district judge Arthur J. Schwab, is as rogue an exercise as the executive usurpation that prompted it.



At bottom, the case before the court, United States v. Elionardo Juarez-Escobar, has nothing to do with President Obama’s amnesty decree. It is a criminal case involving an illegal alien who pled guilty to reentering our country sometime after being deported in late 2005. (Reentry after deportation is a felony.) The only issue before Judge Schwab at this point is the determination of a sentence of incarceration. The case does not involve deportation, which is a civil proceeding. It is to deportation that Obama’s amnesty decree pertains — specifically, to categories of illegal aliens for whom deportation is to be deferred.

The civil-versus-criminal distinction is palpable, but it actually understates how unrelated this particular criminal case is to Obama’s amnesty decree. Even Juarez-Escobar’s defense lawyer agrees with the Justice Department that the president’s decree (or “executive action”) does not apply to the defendant. On the record developed in the criminal case, Juarez-Escobar would not qualify for relief from deportation. The opinion contains some fleeting suggestions that the 42-year-old defendant may (or may not) be the father or stepfather of an American citizen, which might (or might not) make him eligible for relief under the decree. But that is a question for another day — and another case. No factual record was developed on this point because it is immaterial to the only relevant questions in the criminal case before Schwab: (a) whether the defendant reentered the U.S. after being deported and, (b) if yes, what sentence should be imposed.

Imperious judicial activism is no better than imperious executive overreach. That the result the judge reaches happens to accord with conservative sentiments does not make the exercise any less invalid. After all, what offends conservatives about President Obama’s machinations is his disregard for the Constitution’s limits on his authority. Judge Schwab, analogously, has run roughshod over constitutional boundaries that limit the exercise of judicial authority. The Constitution empowers judges to resolve only cases and controversies that are actually before the court. In this case, President Obama’s decree was not before Judge Schwab — at least until he gratuitously directed the parties, who had not raised it, to address it.



As is typical with judicial activism, Schwab not only ignores the law in order to reach a matter he has no business addressing; he then mangles the law in addressing it.

In our constitutional republic, it is presumed that questions of public policy should be decided by the people’s representatives through the political process. Courts are supposed to get involved only when government action has arguably violated a person’s legal rights. The judiciary is a peer branch; it is not there to micromanage the president and Congress. Consequently, judges owe a measure of deference to the political branches. Our jurisprudence reflects this principle by admonishing that courts should not rule on the constitutionality of government actions except as a last resort — when it is absolutely necessary in order to decide a question that is properly before the court.

Judge Schwab gets this exactly backward. He somehow reasons that he must first decide whether the Obama amnesty decree is constitutional, and only then determine whether the decree is applicable to Juarez-Escobar. Of course, since the decree is not applicable to the defendant (or, indeed, to any criminal case), there was no reason for Schwab to assess its constitutionality. He patently oversteps his role in doing so.

While the ruling comes to the correct — albeit irrelevant — conclusion that the decree is unconstitutional, much of the court’s analysis is suspect, to say the least.



Judge Schwab is right that President Obama’s amnesty decree is a usurpation of Congress’s constitutional power to legislate the terms of lawful presence by aliens in the United States. The court is especially persuasive in rejecting the president’s extortionate tactic of telling Congress to “pass a bill” (that accords with Obama’s amnesty preferences) if lawmakers want him to withdraw his executive action. The Constitution vests only Congress with the power to make law; as Schwab writes, “presidential action may not serve as a stop-gap or a bargaining chip to be used against the legislative branch.”

The court, however, also careens into a plodding and pointless analysis of whether a president may act when congressional inaction is “arbitrary” — i.e., whether there comes some measurable point when Congress’s refusal to pass a law a president is demanding becomes intolerable.

The Constitution’s prohibition on legislating by the executive has nothing to do with the Framers’ failure to divine justiciable metrics for determining whether Congress’s refusal to pass a law is reasonable. The Framers were simply and adamantly opposed to the combination of executive and legislative authority in one government actor, which they saw as the road to tyranny. Thus is the Constitution built on the principle of separated powers that compete with and effectively check one another. The Constitution denies presidents the power to make law, period. The power is for Congress alone to exercise, and its reasons for declining to do so are irrelevant.


Judge Schwab also correctly concludes that Obama’s amnesty is not, as the administration claims, a proper exercise of prosecutorial discretion. The court accurately shows that prosecutorial discretion is merely a resource-allocation doctrine pertinent to the enforcement of criminal law — to such decisions as which crimes merit police attention, who should be charged, when a search warrant should be sought, and so on. By prescribing categories of exemption from immigration enforcement, Obama is effectively rewriting Congress’s immigration laws, not exercising prosecutorial discretion.

Yet, the court goes awry in discussing whether the executive branch is assessing illegal aliens on a “case-by-case” basis.

If the executive’s immigration-enforcement agencies were really evaluating each case individually, there would be a plausible argument that the exemption categories Obama has prescribed are just loose guidelines that are routinely disregarded in specific cases, not hard rules that govern executive action in all cases. According to this argument, since only hard rules are the equivalent of legislation, the amnesty decree’s loose guidelines are not legislation at all — they are just a sensible way of exercising prosecutorial discretion.

The administration claims that Obama’s decree should be construed as loose guidelines applied in a case-by-case manner because the decree stipulates that the deferment of enforcement can be “terminated at any time” for any illegal-alien beneficiary. Schwab counters that this is an impractical and thus illusory limitation. In a convoluted argument, he homes in on the stated core objective of Obama’s immigration policy, “family unity” — i.e., keeping families together even if some members do not technically have a right to be in our country. Schwab contends that, in the real world, this emphasis on keeping families together will prevent law-enforcement agents from terminating deferments in individual cases, and will similarly discourage future presidents and Congresses from reversing Obama’s deferment standards. Thus, he concludes, they are realistically more in the nature of permanent legislation than loose guidelines.

Perhaps the judge is right in this, but it is a political argument, not a legal one. It is for the political branches to sort out, not the courts.

The valid legal objection to the administration’s position is that “terminated at any time” is a farce. For prosecutorial discretion to be properly exercised, a case-by-case assessment of each alien’s worthiness for deferment would have to be the first requirement. To the contrary, the first consideration in Obama’s decree is the establishment of categorical exemptions that will be rigorously honored — the immense burden of processing at least 4 million potential beneficiaries will easily overwhelm any possibility of case-by-case analysis.

In an attempt to camouflage what, of necessity, will be the absence of case-by-case analysis, the decree throws in a lip-service provision that deferments can be “terminated at any time.” In reality, Obama’s categories are the whole ballgame. For an illegal alien who fits them, deferment becomes an entitlement and the individual merits of his case will not matter a whit. Obama’s decree is thus sweeping presidential legislation, not case-by-case prosecutorial discretion.



Finally, there is irony in Judge Schwab’s decision. He stresses the president’s prioritization of family unity as the foundation of humane immigration policy; then, like Obama, he promotes his own ideas about how far “family” should go. (In a footnote that I assume is offered in jest, the 68-year-old jurist insists that grandparents must be deemed included in the decree’s reference to parents, lest the Obama administration be guilty of “an arbitrary and anti-grandparent position [that] demonstrates a lack of true understanding of ‘family.’”) This emphasis on family leads Schwab, bizarrely, to object that Obama’s decree does not go far enough – notwithstanding that the judge has just finished finding it to be unconstitutional because it exceeds the president’s authority.

Juarez-Escobar does not fit into Obama’s deportation-deferment categories but, Schwab complains, neither does he fit into Obama’s enforcement-priority categories (i.e., he is not a terrorist, a serious felon, a recidivist misdemeanant, etc.). To the judge, this somehow puts him in a “no man’s land” that cannot be justified if Obama’s purpose is to provide relief for illegal aliens who are “more family than felon.”

Let’s put aside that no one elected Judge Schwab to draw these lines; after all, no one elected Obama to do it either — it is Congress’s job. You would think it might occur to the judge that the defendant is in “no man’s land” with respect to the amnesty decree precisely because the amnesty decree does not apply to him — it does not have anything to do with the case, no matter how much Schwab is itching to weigh in on it.



President Obama’s amnesty decree is clearly lawless. There is naturally satisfaction in a court’s saying so, especially with Congress’s having just reneged on its duty. But the satisfaction quickly dissipates: It was no more right for the court to rule on the decree than for the president to issue it. Plus, the ruling is ineffective: It has no real bearing on the case before the court, and it is impotent to stop the administration’s implementation of the president’s unconstitutional decree.

As I argue in Faithless Execution, the Framers gave Congress powerful tools to rein in presidential lawlessness: in particular, the power of the purse, and the power to impeach executive-branch officials, up to and including the president, who order and carry out illegal acts. Courts, to the contrary, cannot be relied on to bring a lawless administration to heel. As Hamilton famously observed, the only power they possess is judgment — they have no capability to enforce their rulings.

Judgment is no trivial thing. A proper judicial ruling that a president has violated the Constitution can have great persuasive force. It can move public opinion. It can create a political climate that (finally) emboldens Congress to flex its constitutional muscles and take corrective action. But the gravitas of judgment hinges on its being properly exercised.

When a judge weighs in on a matter that is not before the court, especially one of great public significance, the judge is doing politics, not law. Since that itself is an unconstitutional exercise of power, the judge’s censure of a president’s unconstitutional exercise of power is cold comfort.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.


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