This is the first court decision on this topic, and one might wonder whether the temptation of that fact alone accounts for the ruling. For only the judge, of all the actors in the case, felt the Obama action was relevant to its outcome. Neither the prosecution nor the defendant raised this question. When the court specifically asked that they go back and do so, the government said it was irrelevant to this defendant. And the defendant didn’t disagree, pointing out only that he did not seem to be on DHS’s high-priority list for deportation.
Thus it is hard to see how “in determining whether the Executive Action is applicable to this Defendant, this Court must first determine whether the Executive Action is constitutional” (p. 18), because there is no claim that it is applicable. And even if it were, as Jonathan Adler writes elsewhere in these pages, “it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case.” He is being kind. There is no case or controversy requiring this opinion, still less a rationale for shoehorning it into a straightforward ruling in a criminal case.
I am not, by the way, arguing that the Obama actions are in fact constitutional. Certainly the opinion is right to point out some of their odd inconsistencies and those in immigration enforcement generally (though most of the latter might actually be read to support the wide extent of extant discretion in this arena.) I’m also happy anytime anyone bothers to distinguish executive actions from executive orders (on which, see also here.)
Still the best line in the opinion might be turned on itself. After quoting extensively from Obama’s November 20 address, Judge Schwab quips (p. 17) that “the sole citation to authority in the president’s speech was from the Old Testament.”
But of course a presidential speech is not meant to be a legal brief, or a court opinion.
A court opinion … well, it’s not meant to be a speech.