A lot of people got pretty excited yesterday over the news that U.S. District Judge Arthur Schwab of Pennsylvania had declared President Obama's executive amnesty unconstitutional. We all know it is, of course, and it's certainly welcome to hear a federal judge say so in the course of ruling on a case.
The problem, though, is that the case in question was not about executive amnesty, and while Judge Schwab's declaration is good to hear, it doesn't change a thing and doesn't even really have any legal effect. The case in question involved a guy from Honduras who was deported in 2005 but snuck back in to the U.S. It was a simple criminal case involving an individual, and in the course of accepting the defendant's guilty plea, Judge Schwab mused about whether executive amnesty might affect the implementation of the ruling:
For that review, Schwab left open whether the actions might apply to Juarez-Escobar but determined the executive actions themselves were unconstitutional.
He wrote that the action goes beyond so-called "prosecutorial discretion" -- which is the "discretion" the administration cites in determining whether to pursue deportation against illegal immigrants.
Obama's policy changes would give a reprieve to up to 5 million illegal immigrants, including those whose children are citizens or legal permanent residents and who meet other criteria.
Schwab, a George W. Bush appointee, wrote that this "systematic and rigid process" applies to a "broad range" of enforcement decisions, as opposed to dealing with matters on a "case-by-case basis."
Further, he wrote that the action goes beyond deferring deportation by letting beneficiaries apply for work authorization and allowing some to become "quasi-United States citizens."
He also cited Obama's argument that he was proceeding with executive action after Congress failed to act on comprehensive immigration legislation, and countered: "Congressional inaction does not endow legislative power with the Executive."
Now Judge Schwab's expressed opinion is clearly correct, and that last statement is key. Just because Congress declines to act doesn't mean the president is thereby endowed with more power. That's not how our system works. If Congress declines to act, there is no action. If the president wants a law changed but Congress chooses not to change it, then the law remains. The president's opinion that the law needs to change, even if he's right, is irrelevant.
The now-convicted defendant in this case will presumably be sent either to a U.S. prison or back to Honduras again, although it is an interesting question Judge Schwab raises as to whether executive amnesty might lead federal law enforcement to simply sit back and do nothing. It seems unlikely that they would just let the guy go now that he's been duly tried and convicted in a U.S. court. My impression of Obama's executive amnesty is that it starts with not arresting people in the first place, not with ignoring the disposition of people already convicted.
But that's really the problem with amnesty in the first place, isn't it? Especially when it doesn't come with any sort of congressional authorization. There's no force of law behind it. No matter what the president says, there are still people in the legal system and there will be more coming. If Congress had declared a blanket amnesty and this guy's situation was included, then the INS could have just let him go under the law. But they didn't, and Obama can't do on an ad hoc basis what he wishes Congress would do.
That makes Judge Schwab's opinion very worth noting. But by itself it does not represent the striking down of amnesty. Indeed, how can you strike something down that isn't a law in the first place? That's the even bigger problem with executive amnesty. Obama is operating outside the law, which means the legal system really has no recourse to address it. And that's the real reason it's such a serious abuse of power.
