The Volokh Conspiracy

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Unless I'm missing something, this is an exceedingly strange opinion


I just read Judge Schwab's opinion holding that Obama's executive action on immigration is unconstitutional, and, well, yikes. I don't say yikes because of the constitutional argument that Ilya has covered, although I tend to agree with Ilya that this part of the opinion is pretty unpersuasive. Instead, I was astonished by the legal contortions that Judge Schwab undergoes to get to the point that he can rule on Obama's policy—and then the way he backs off the implications of his own ruling. Unless I'm just missing something unique to immigration law, it's an exceedingly strange opinion.

Here's the context. The defendant, Juarez-Escobar, is an undocumented immigrant who was deported in 2005 under the civil immigration authorities. Juarez-Escobar re-entered the U.S. sometime after, which is in direct violation of a federal criminal law, 8 U.S.C. 1326. In 2014, Juarez-Escobar was pulled over in a traffic stop in Pennsylvania and was arrested for drunk driving. He had no driver's license, and the police decided to contact the Department of Homeland Security to check on his immigration status. Federal charges for criminal re-entry followed, and Juarez-Escobar pled guilty and is now awaiting his sentence.

So here we have what looks like a pretty ordinary criminal immigration case. As Judge Schwab says in his opinion, the usual path in these routine cases would be to sentence the defendant to time served and await deportation. But Judge Schwab decided to make this no ordinary case.

Judge Schwab instead asked counsel to brief the issue of whether President Obama's recently-announced executive action on immigration applied to this case and whether that policy raised any constitutional issues. The government filed a short response explaining that Obama's announced policy has no application here: Obama's policy relates to civil enforcement of the immigration laws, while Juarez-Escobar's case is a criminal prosecution of criminal re-entry after having been kicked out years before. The defendant's counsel mostly agreed. Defense counsel acknowledged that the policy has no direct relevance to this case based on the known facts, although he speculated that the executive action might have some relevance if some specific facts about came to light about the defendant that were presently unknown.

You'd think that would pretty much end things. After all, the executive branch had explained why this particular defendant was not getting the benefit of an executive branch policy not to enforce a particular law: The explanation, pretty simply, was that this was a different law—one that the executive branch was enforcing. The defendant didn't really disagree. At this point, the case seems pretty straightforward, and you would expect it to go sentencing.

But here's where things get weird. Judge Schwab reasons that if, hypothetically, the executive branch is wrong that the executive branch policy does not apply to the defendant, then the executive branch might give relief to the defendant. But if the executive branch gives relief to the defendant and that relief is unconstitutional, then the executive branch would have no constitutional authority to give that relief. In order to make sure that the executive branch doesn't give unconstitutional relief to the defendant—again, relief that the executive branch isn't giving—Judge Schwab decides he must rule on whether President Obama's executive action is constitutional. He then rules that the executive action was unconstitutional. Because the executive action is unconstitutional, the defendant could not constitutionally get the relief that he is not getting.

Strange, eh? But wait, there's more. At that point you would think that the matter is at least resolved in this case: The defendant can't get the relief, and therefore Judge Schwab can proceed to sentencing. But that doesn't happen. Instead, for the remainder of the opinion, Judge Schwab assumes that his constitutional ruling was wrong and asks what should happen if the policy is instead constitutional. If Judge Schwab's constitutional ruling is wrong, and the new policy would give Juarez-Escobar relief if it applied to him, we need to go back to the question of whether the Obama policy applies to Juarez-Escobar. Judge Schwab concludes that he can't be sure of the answer. And if the policy does apply to Juarez-Escobar, and if Judge Schwab is wrong and the executive action is constitutional, then it would violate Juarez-Escobar's rights to sentence him to the criminal offense to which he pled guilty. Judge Schwab concludes by saying that he must have further development of whether the executive action that he has just ruled unconstitutional would apply to the defendant if it were constitutional. So he orders Juarez-Escobar to tell the court what he plans to do next: withdraw the plea, go to sentencing and seek relief based on the executive action, or go to sentencing and accept deportation.

Maybe I'm missing something, especially something unique to immigration law, that makes this opinion less odd than it seems. But based on my read, Judge Schwab struck down a policy that wasn't actually before him, and then he wrote the rest of his opinion assuming that his own ruling was wrong. I'm not sure I've ever seen anything quite like it.