By Torsten Ove, Pittsburgh Post-Gazette (TNS)
PITTSBURGH — A federal judge in Pittsburgh ruled Tuesday that President Barack Obama overstepped his authority and violated the Constitution when he issued an executive order last month to delay deportation for millions of people living in the U.S. illegally.
In an opinion issued in a local case of a Honduran man who illegally re-entered the country, U.S. District Judge Arthur J. Schwab said the president cannot use his executive powers to bypass Congress.
The judge, who was appointed to the bench by former President George W. Bush, said the president’s order in November amounts to “unilateral legislative action” and is unconstitutional.
“Congress’ lawmaking power is not subject to presidential supervision or control,” the judge wrote in a 38-page opinion that quickly made its way to national news websites.
He said inaction by Congress on immigration does not endow the president with legislative powers to enact law, even temporarily.
“Presidential action may not serve as a stop-gap or a bargaining chip to be used against the legislative branch,” he wrote.
Although the opinion doesn’t direct the government to take any action and would seem limited to the local case, it was quickly denounced by the U.S. Department of Justice.
“The decision is unfounded and the court had no basis to issue such an order,” a Department of Justice spokesperson said. “No party in the case challenged the constitutionality of the immigration-related executive actions and the department’s filing made it clear that the executive actions did not apply to the criminal matter before the court. Moreover, the court’s analysis of the legality of the executive actions is flatly wrong. We will respond to the court’s decision at the appropriate time.”
The case involves Elionardo Juarez-Escobar, 42, a Honduran native who was arrested in April for drunken driving in New Sewickley.
He was later indicted in federal court in Pittsburgh for illegally returning to the U.S. after he’d been deported from New Mexico in 2005 after being caught there by the Border Patrol.
After 2005, he sneaked back into Texas from Mexico, then paid a van driver to take him to New York, where a friend drove him to Pittsburgh to be re-united with his brother, who runs a landscaping business.
He entered a guilty plea here in October and remains jailed pending sentencing.
In his ruling, the judge said he would typically sentence someone like Juarez-Escobar to time served and order him to be turned over to the U.S. Department of Homeland Security for deportation. But he delayed sentencing in this case because he said the president’s action might give Juarez-Escobar new rights to fight removal from the U.S.
The judge gave him until Jan. 6 to decide if he wants to withdraw his plea.
The U.S. attorney’s office will then have until Jan. 12 to respond to Juarez-Escobar’s decision.
Central to the case is a debate over whether the president’s executive order applies at all.
The president issued his order on Nov. 20. Four days later, without prompting from either side, Judge Schwab requested Juarez-Escobar’s McKeesport lawyer, Alonzo Burney, and the U.S. attorney’s office to submit briefs on whether the decision would affect the case.
Burney said he didn’t have the expertise to answer, but brought in an immigration attorney, Robert Whitehill, who said the new policy might be a factor.
“The government could decline to seek his removal after the instant criminal matter is resolved or exercise prosecutorial discretion to grant him relief from removal,” wrote Whitehill.
Federal prosecutors said the president’s policy would not matter because the Justice Department already has said the president’s policy does not apply to criminal cases such as Juarez-Escobar’s.
But the judge sided with the defense.
He said that while deportation is imposed by an immigration judge in a civil proceeding, that civil proceeding often arises as a result of the individual being convicted of a crime. And that crime can be re-entry of a removed alien, as it was in the case of Juarez-Escobar.
“Thus, this court, which arguably has no control over the imposition of the ‘deportation sanction,’ cannot ignore the fact that what happens here, in this criminal proceeding, significantly and determinatively impacts what happens there, in a civil proceeding.”
The judge’s opinion regarding the president’s authority or lack of it is similar to the arguments made by 24 states in their challenge to President Obama’s immigration policy.
Republican politicians predictably lauded the judge’s decision.
U.S. Rep. Lou Barletta (R-PA), a strong voice against the president’s immigration stance, said the ruling validated what he has been saying for weeks.
“It is clear that the president has overstepped his authority by creating new laws and granting sweeping amnesty to millions of illegal immigrants,” he said.
U.S. Rep. Bill Shuster (R-PA) had a similar reaction.
“I have been and will continue to fight back at any attempts by President Obama to grant amnesty to millions of illegal immigrants,” he said. “When he announced his executive actions he turned his back on the American people and our system of government.”
But many legal observers took Judge Schwab to task, with some saying he was wrong to even solicit briefs on an issue that neither party raised.
David Leopold, former president of the American Immigration Lawyers Association, said that the judge improperly inserted himself into a national debate when he had no business doing so because the Juarez-Escobar case is a criminal matter.
“It’s shocking that a federal judge would use an unrelated criminal case to take it upon himself to declare the lawful, discretionary decisions of a sitting president unconstitutional,” he said in a statement. “I’m confident that this ill-advised and poorly reasoned opinion will be corrected by the (3rd Circuit) Court of Appeals.”
Most legal observers said the judge’s ruling is certain to be the first of many coming debates in the federal judiciary over Obama’s immigration policy.
“Given the position the Justice Department took, they would be wanting to appeal this, and is there a possibility that the Supreme Court would weigh in at some point? Sure,” said Bruce Antkowiak, a former federal prosecutor and director of the criminology, law and society program at St. Vincent University. “At a minimum you’re going to see various federal circuit courts weighing in on this executive action.”
(Staff writers James O’Toole, Mark Roth and Tracie Mauriello contributed.)
AFP Photo/Ethan Miller