Earlier tonight, Curtis Houck at NewsBusters observed that the Tuesday evening network news shows failed to report on an opinion issued today by a federal judge in Western Pennsylvania in connection with President Obama's illegal immigration-related executive actions last month.
Several blogs and center-right outlets noted Judge Arthur Schwab's 38-page "Memorandum Opinion" this afternoon. Not that this excuses the networks, but a search at the Associated Press's national site just before 8 p.m. on Schwab's last name (unfortunately not saved) returned nothing relevant. But shortly after 8 p.m. a story with a time stamp of 5:08 p.m. with Schwab's name finally showed up in the same search. Only the AP can explain how this could have happened.
Here is the AP's unbylined 5:08 p.m. story, presented in full for future reference, fair use and discussion purposes:
The AP's characterization of Adler's position is far too limited.
At the Washington Post's Volokh Conspiracy blog, Adler elaborated on what Judge Schwab had done (bolds are mine):
District court declares Obama immigration action unconstitutional (Updated)
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority.
... The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation. In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence. (But Judgge Schwab does — Ed.)
... this case shows, even if the states don’t have standing (in their separate legal actions — Ed.), the legality of the president’s actions could nonetheless be decided in federal court.
UPDATE ... 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.
On the merits, I understand the concerns that motivate Judge Schwab’s reasoning, but I am not persuaded. ...
It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful. The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action. It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution. President Obama’s action may be broader than many are comfortable with, and it is understandably hard to stomach given all the President’s prior statements disclaiming authority to take these steps — but such concerns are rooted in customary political norms, not judicially enforceable constitutional rules.
ADDITIONAL UPDATE: 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. ... while Judge Schwab declared the President’s actions to be unlawful, he did not set it aside.
Adler certainly can support his analysis, but what he didn't mention is that Judge Schwab felt it necessary, despite his expressed opnion, to treat the President's executive actions as current law in order to decide the case before him. So he told the contending parties' lawyers to do the necessary research, and to come back on January 6 of next year to present their complete arguments.
If the judge ends up deciding that he has to rely on Obama's executive actions as "the law" when he decides the criminal case before him, it might present him with an opportunity to make a judicial ruling, as opposed to his current expression of opinion, that Obama's actions were unconstitutional. So despite what the AP's quoted ACLU official has said, this was more than some judge just expressing his opinion for the heck of it.
Surely the AP could have, if it had wished, done a better job of identifying Adler's views. But it seems that the wire service was more interested in presenting Schwab's opinion as an outlier than it was in attempting to explain what he really said.
Meanwhile, over at the Huffington Post, Elise Foley and Ryan Grim are warming up the leftist attack machine, claiming that Judge Schwab "Has (a) Checkered Past." Part of that "checkered past" includes the following:
He was the first federal judge to advance the scope of religious protections created by the conservative Supreme Court justices in the recent Hobby Lobby decision.
Contrary to what the HuffPo pair claims, Schwab's Hobby Lobby decision protected the religious conscience freedom of those who own closely held corporations, It stood up all the way to the Supreme Court. That's not "checkered," guys. It's the consensus — narrowly decided, but still the consensus.
Cross-posted at BizzyBlog.com.
