October 24, 2021

District Court Declares Obama Immigration Action Unconstitutional

Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.

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.

This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States.

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.

This isn’t the only case challenging the lawfulness of the Obama’s immigration actions.   Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms.  Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area.  As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims.  Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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