“The Court holds that the Executive Action is unconstitutional because it violates the separation of powers and the Take Care Clause of the Constitution,” wrote U.S. District Judge Arthur J. Schwab, who was appointed to the federal bench by President George W. Bush. In his ruling, Schwab used common GOP talking points meant to criticize and delegitimize Obama’s immigration order that came after Congress repeatedly failed to strike a deal that would reform federal immigration policy.
Obama’s executive actions, which create pathways for three-year work permits for more than 4.4 million people who were brought to the United States as children as well as the undocumented parents of citizens, are illegal because they amount to the president legislating, the task reserved for Congress, according to Schwab’s ruling.
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“Congress’s lawmaking power is not subject to Presidential supervision or control,” Schwab wrote. “Perceived or actual Congressional inaction does not endow legislative power with the Executive.”
The ruling came in a case of a Honduran man who was deported, and then unlawfully reentered the country and was arrested and detained by the Department of Homeland Security. In considering how to sentence the defendant, the court sought supplemental briefing from the parties on whether or not the president’s executive actions would apply in this case, and if so, whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.
The fact that the court independently ordered supplemental briefing to address the immigration actions suggests Schwab was looking for a way to address the constitutionality of Obama’s orders on his own.
Yet the impact of the ruling is not immediately clear. Noting that the case was “arguably unequal and arbitrary immigration enforcement,” the order declares the president’s actions to be unlawful, but also gives the defendant an opportunity to seek relief from deportation under the recent executive actions.
In other words, Obama’s immigration orders remain in effect despite Schwab ruling them unconstitutional.
Schwab’s ruling also echoed Republican talking points opposing the president’s deferred prosecution order, suggesting that Obama’s executive actions conceivably have no limits and that a future president could instruct the IRS to collect a lower tax rate than established by law and “defer prosecution of any taxpayer” who pays the lower rate, for example.
Tuesday’s ruling is not the only challenge the Obama administration faces on its immigration policy.
A handful of states led by Republican governors, have sued, challenging the orders. Meanwhile, the American Civil Liberties Union filed a nationwide class-action lawsuit this week challenging the administration’s asylum detention policy.