Well, the judge had a little bit of it right, but ultimately his exercise in jurisprudential gymnastics in order to declare President Obama’s executive order unconstitutional is plainly faulty. If challengers are going to invalidate the action they will need another vehicle.

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.

No quibble from many conservatives with that. But how did this get decided? This was a criminal proceeding against an illegal immigrant (arrested for drunk driving and facing deportation) claiming protection under the executive order. The court raised the issue and told the parties to brief it. Although he acknowledged the executive order governed only civil proceedings, he nevertheless opined on the president’s order. That was mistake No. 1. “He acknowledges this point but says that the outcome of the criminal case will affect a future civil deportation proceeding, which would be covered by the order, ” says John Yoo, who, like me, believes the action is illegitimate. “But that is speculative, because we don’t know about the proceeding in the future yet.” To make matters worse, the judge decided on the constitutionality of the action before deciding if it applied to the defendant, which it did not (because he did not fit within the criteria of any designated group of people protected under the president’s order). Most law students know that when the constitutional issue can be avoided, the court is obliged to decide the case on more limited grounds. Here the judge went looking for it and went right for the issue he wanted to address. In other words, the whole discussion is “dicta,” extraneous material and does not stand for much of anything. And it is really bad judging.

The judge may be right on the ultimate constitutional question, but he blew it by, in essence, creating an improper pretext to get to that issue. (Yoo says, “There is no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in Juarez-Escobar’s case –in fact, the defendant here pled guilty.”) The case does not really affect anything and won’t be effective precedent in other cases.

The judge had it right when he said that the president’s power does not include “unilateral implementation of legislative policies” (p. 19). And he is certainly correct that this goes well beyond prosecutorial discretion because it sets forth a “systematic and rigid process” more akin to legislation and because it affords substantive rights (green card) (p. 20.) But being right on the merits is not enough for a court. Just as the president is circumscribed in his power, courts are not allowed to reach out, use a case before them as an excuse to opine on an issue not properly before them (called an “advisory” opinion) and then take a constitutional issue first, only to decide the order does not apply to the defendant anyway. We cannot right an executive wrong with a judicial error.

There are cases in which the constitutionality of the order will be properly before the court. States have filed suit and by precedent are permitted to plead an injury due to non-enforcement of the law. In addition, an employer should be able to ask a court to tell him if he can or cannot hire someone who is legal to work simply by virtue of the president’s actions. (If he guesses wrong he is subject to fines.) Conservatives do care about constitutional process and limitations. They should, therefore, call out this judge for overreach, thank him for the road map to a proper constitutional argument on the merits and then find a case that properly presents the issue. In short, the district court case is nothing to celebrate. As Yoo put it, “Conservatives should remain principled in their opposition to President Obama’s misuse of executive power, but they should also remain true in their resistance to the siren song of judicial activism. They should not invite judges to carry out the heavy work of opposing the President which here is the duty of Congress.” I concur.

UPDATE: Ilya Somin’s analysis of the case is worth reading in full.