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Obama’s Immigration Measures Unconstitutional
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A federal court has ruled that President Obama overstepped his prosecutorial authority when he issued a recent executive order.

Summary: A federal court has ruled that President Obama’s recent executive order on immigration is unconstitutional.

The Wall Street Journal reports that on Tuesday, a federal judge ruled that President Barack Obama’s executive order on immigration was unconstitutional. The ruling is the first time that a court has determined whether the White House overstepped its bounds by providing protection from deportation to millions of illegal immigrants without first obtaining approval from Congress.


Judge Arthur Schwab penned the 38-page ruling. Judge Schwab was nominated by President George W. Bush in 2002. In the ruling, Judge Schwab wrote that the executive order goes “beyond prosecutorial discretion.” The opinion reads, “President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional.”

Many experts had predicted the order was lawful.

Judge Schwab noted that the order breaches the executive powers in two ways. First, although the executive branch does have prosecutorial discretion in immigration enforcement issues, that discretion is limited to a case-by-case examination. Without prior congressional approval, the executive order puts into place “a systematic and rigid process” for deciding who will be eligible for the reprieves, a process that does not follow the case-by-case approach.

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In addition, Judge Schwab said that undocumented immigrants will become “quasi-United States citizens” since they are allowed to apply for work permits. Once this right is granted to an immigrant, a future president could not strip that right away without causing irreparable harm to “’families, not ‘felons,’” who “have been allowed to deepen and strengthen already existing ties to their lawfully present American family members and the wider community,” the judge explained.

Undocumented children will receive $9 million in legal services.

The constitutional implications of the opinion take up roughly four pages in the ruling. The remainder of the opinion is a discussion about the defendant himself. The defendant is a 42-year-old Honduran immigrant who pleaded guilty to re-entering the country unlawfully after he had been expelled years before. The opinion centered on whether the executive order could apply to this defendant’s situation. It should be noted that Judge Schwab brought the issue up, not President Obama. The case has reached the sentencing phase.

The current ruling did not analyze whether the executive action will affect that defendant. However, Judge Schwab explained that that issue could not be addressed until the constitutionality of the executive order was resolved.

President Obama spoke about executive orders in this article.

The executive order will give over four million illegal immigrants the opportunity to apply for work permits and will provide them with a temporary pardon from deportation. Those who have been in the United States for at least five years and have children that are citizens or legal permanent residents are eligible to apply for these benefits. According to the White House, close to one million additional illegal immigrants may benefit through the expansion or creation of other programs.

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The ruling may be the first of many to come. In early December, several states, with Texas at the forefront, filed a lawsuit that challenged the executive order. Texas Attorney General Greg Abbott said, “Our immigration system is broken and it must be fixed.” Abbott added that the system must be repaired “by Congress, not presidential fiat.”

However, many experts feel that the short constitutional analysis and the procedural idiosyncrasies may set it up for review by a higher court. Washington University School of Law professor Stephen Legomsky said, “This is definitely an outlier. I have no reservations about saying that.” Ilya Somin, a George Mason University law professor, commented that he questions the difference between the case-by-case immigration analysis and the systematic policy on whether to prosecute cases or ignore them. Somin explained, “Unless case-by-case exemptions are to be completely arbitrary and capricious, they must be guided by at least some general principles, such as the considerations relating to the risks posed by letting the offender go and the moral blameworthiness of the conduct.”

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