The legal wrangling over President Obama’s recently announced executive actions on immigration got off to an early and unexpected start yesterday when Judge Arthur Schwab, a district court judge in Pennsylvania, declared Obama’s actions to be unlawful.
Nobody saw this coming because no one actually asked Schwab to weigh in on Obama’s immigration action – he just up and did it on his own, because that’s what judges do, right? They judge things. And so, in a 38-page opinion on the sentencing of an undocumented Honduran immigrant arrested for drunk driving, Judge Schwab laid out his abbreviated take on one of the more controversial presidential actions in recent memory, declaring it “unconstitutional.” But, despite declaring it unlawful, Schwab declined to invalidate the order. “Given that no party was challenging the lawfulness of the President’s action,” writes Jonathan Adler at the Washington Post, “it’s not clear what authority the court would have had to invalidate the policy.”
You should read Elise Foley’s and Ryan Grim’s dive into Schwab’s background to get a sense of why Schwab would set himself on this bizarre path toward confrontation with the president. Basically, Schwab (appointed to the bench by George W. Bush at the recommendation of then-Sen. Rick Santorum) is a conservative crank who is viewed as overly partisan (even for the federal judiciary) and has been disciplined in the past for issues of bias and temperament.
And Schwab pretty clearly went into this with an agenda. He wasted several pages of the opinion quoting Obama’s past statements on how the president can’t change immigration policy unilaterally. While those quotes are politically inconvenient for Obama, they don’t actually say anything about the legality of the president’s actions – which Schwab himself acknowledges: “While President Obama’s historic statements are not dispositive of the constitutionality of his Executive Action on immigration, they cause this Court pause.”
His legal critique of the president’s proposed program encompasses all of five pages, with no precedents cited to back up his claims of presidential overreach. It was as if Schwab, in building his case against the constitutionality of Obama’s executive action, skimmed a few conservative blogs, copy-and-pasted a few old Obama quotes, and called it a day. “Judge Schwab traveled far along a very thin branch to reach this decision,” ThinkProgress’ Ian Millhiser writes, “and he anchored his decision with little grounding in legal authorities.” Basically, it is a political argument masquerading as a legal opinion.
And there’s no better proof of that than the fact that dimwit conservative pundits are celebrating Schwab’s argument for the way it tracks with their own thinking. “It almost could've been written by me,” said Fox News’ Sean Hannity, delivering a stronger indictment of Schwab than anything I could hope to muster. “He makes the very arguments that I had been making the entire time.”
Ideally, the federal judiciary should operate at a level of argumentation that is slightly above that of cable news punditry. But as it stands, Schwab’s ruling will stand out as a landmark moment in American history: the first time the courts have Hannitized a sitting president.