I sympathize with Judge Schwab on the merits of his decision against President Obama’s executive order, but disagree with his effort to reach out and decide the action’s constitutionality. Judge Schwab is right that President Obama’s order crosses the line from legitimate prosecutorial discretion (choosing where to allocated limited law-enforcement resources) into Congress’s power over legislation.
But I don’t think the question was properly raised. In this case, the executive branch is prosecuting the defendant, Elionardo Juarez-Escobar, for violating the immigration laws (he illegally re-entered the country after a deportation in 2005). This is not a case where the executive order applies, because the Obama administration is not allowing an illegal alien to remain in the country; rather, it is enforcing Congress’s laws here as written (for once). The executive order only applies to civil removal proceedings, while this case is a criminal one. There is no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in Juarez-Escobar’s case (in fact, the defendant here pled guilty).
Conservatives should remain principled in their opposition to President Obama’s misuse of executive power, but they should also remain true in their resistance to the siren song of judicial activism. They should not invite judges to carry out the heavy work of opposing the president, which here is the duty of Congress.