For the first time, a federal judge announced yesterday that the widely discussed immigration enforcement actions issued by President Obama last month are unconstitutional. United States v. Juarez-Escobar, No. 14-0180 (W.D. Pa. Dec. 16, 2014). The judge’s opinion resulted from a routine criminal prosecution for illegal reentry, INA § 276, a federal felony that
now comprises comprised upwards of 40% of cases referred to federal prosecutors nationwide as recently as fiscal year 2010 but that constituted a lower quarter or so of new criminal filings in FY 2013–down from historic highs but significant nonetheless.
This case involved a migrant who was removed in 2005 and subsequently returned to the United States without authorization. In April 2014 he was arrested on Driving Under the Influence of Alcohol charges in Pennsylvania. Eventually he pleaded guilty to illegal reentry. Roughly a month later the court requested that the migrant’s defense attorney and the federal prosecutor explain whether President Obama’s recently announced immigration enforcement prioritization had any impact on this case. Though the federal argument argued that it did not and the defense admitted that the President’s announcement hasn’t yet gone into effect (making possible applicability irrelevant), Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania issued a scathing critique of the President’s plans.
Electing to defer removal of certain migrants, the judge wrote, would be akin to the IRS deciding to tax at a lower rate than required by the Internal Revenue Code. Id. at 19. Executive action, the judge went on, makes “quasi-United States citizens” of unauthorized migrants. Id. at 22.
Though strident, Judge Schwab’s criticisms can’t mask his poor legal reasoning. He concludes that the President’s actions violate the Constitution’s Take Care Clause—which requires the President to “take care that the laws be faithfully executed”—but doesn’t provide sound analysis to back up that claim. In a single floating paragraph he quotes the U.S. Supreme Court’s 1952 statement that the President is charged with “see[ing] that the laws are faithfully executed” and “refut[ing] the idea that he is to be a lawmaker.” Id. at 18 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).
He does not, however, deal with the fact that the Supreme Court has never taken the position that the President is effectively at Congress’s mercy. “The Constitution,” as I wrote two weeks ago, “doesn’t make the President a lackey of congressional will.”
What, for example, should we make of the unanimous Supreme Court’s statement in Heckler v. Chaney, 470 U.S. 821, 831-32 (1985), that “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion…. The agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing”? Judge Schwab doesn’t mention this passage from Heckler.
What about the Supreme Court’s statement in the well-known Arizona v. United States, 132 S. Ct. 2492, 2499 (2012), decision about Arizona’s so-called “show me your papers” law that “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”? Again, we don’t know because Judge Schwab doesn’t grapple with this language.
And what of the fact that even the IRS, the very agency that Judge Schwab suggests doesn’t do anything of the sort that President Obama announced for DHS, regularly fails to enforce the law? As Lawrence Zelenak put it in a recent Duke Law Journal essay, regularly “deviate from the clear dictates of the Internal Revenue Code.” Those frequent flier miles that so many of us accumulate while traveling for business paid for by our employers, for example, should be taxed, but enjoy “de facto tax-exempt status” thanks to IRS practice.
Ignoring opposing views is fair game in politics, but as a matter of legal analysis it’s downright shoddy. That’s only compounded when it’s the Supreme Court that has expressed that opposing view. Ignoring the Supreme Court’s reasoning doesn’t make it go away.
Moreover, the judge’s decision is arguably wrong about important premises. He concludes, for example, that Mr. Juarez-Escobar is not subject to any of the recently announced removal priorities. The top priority category, however, seems to make room for people just like Juarez-Escobar. Priority 1 describes individuals who have been “convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status.” Such individuals, Secretary Jeh Johnson’s memo dictates, are among the Obama Administration’s “highest priority to which enforcement resources should be directed.” Memorandum from Jeh Charles Johnson, Secretary of the U.S. Department of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants 3 (Nov. 20, 2014). Juarez-Escobar’s conviction for illegal reentry in this very case is a felony under applicable federal law, thus it does not seem to fit within the “state or local offense” exception. Of course, because these priorities were announced less than a month ago we’ll have to see how DHS officials interpret this language, but a plain reading suggests that Juarez-Escobar’s conviction puts him squarely within the department’s radar—a fact that Judge Schwab doesn’t mention.
It’s also notable that Judge Schwab took the position that President Obama’s immigration enforcement priorities are unconstitutional in a criminal case. There’s no doubt that President Obama’s announcement concerns civil immigration law not criminal immigration law. Civil immigration law concerns admission and removal from the United States, whereas criminal immigration law regulates conduct deemed socially undesirable largely through the threat of imprisonment. As a matter of legal doctrine, this is an important distinction. The legal threshold for violating civil immigration law is much lower than for criminal immigration law, thus the procedural protections afforded to individuals who find themselves in the former are much more limited than in the latter.
Judge Schwab, however, concludes that this doctrinal boundary is of no consequence. “[W]hat happens here, in this criminal proceeding, significantly and determinatively impacts what happens there, in a civil proceeding,” he explains. Juarez-Escobar at 25. To buttress this point, the judge cites to the Supreme Court’s acknowledgement in Padilla v. Kentucky, 559 U.S. 356, 360 (2010), that “deportation is…intimately related to the criminal process.” Id. at 25. While the Padilla Court did say that, it did so in a wholly different context—one in which a long-time lawful permanent resident faced the possibility of removal solely as a result of his criminal conviction. Here Juarez-Escobar is removable no matter what happens in the criminal case. In fact, he’s removable even if there had been no criminal case by virtue of the fact that he lacks authorization to be in the United States and that he entered the United States without authorization after having previously been removed.
As if to underscore his misunderstanding of the Padilla decision, Judge Schwab later explains that that case “held that undocumented immigrants” are entitled to the Sixth Amendment right to effective assistance of counsel in certain situations. Id. at 30. While Padilla certainly addresses the right to counsel, it isn’t a case focused on “undocumented immigrants,” at least not if that phrase is defined to mean people who lack the federal government’s authorization to be present in the United States. José Padilla is a Vietnam veteran and lawful permanent resident who had lived in the United States for about 40 years by the time his case reached the Supreme Court. The extent to which the Court’s decision in his case applies to unauthorized migrants is debatable. What’s not debatable is Mr. Padilla’s immigration status.
Nor is the Supreme Court’s vote in that case up for debate. Judge Schwab says that a “plurality” of the Court explained important changes in the intersection of criminal and immigration law in a particular way. Id. at 31. Not so. The majority of the Court did that. Of the nine justices who sit on the Supreme Court, four voted with Justice Stevens’ reasoning and conclusion making for a majority of the Court. Two others concurred in the outcome and two more dissented. A detail perhaps, but one that matters. Plurality opinions do not carry nearly the weight of authority that do majority opinions.
There is one other fascinating piece of this case that’s worth mentioning. At the request of Juarez-Escobar’s criminal defense attorney, Judge Schwab apparently appointed an immigration attorney to work alongside Juarez-Escobar’s court-appointed criminal defense attorney. Id. at 34. This is a very unusual move and one that ought to be commended.
For now, Judge Schwab’s opinion stands to affect Juarez-Escobar and no one else. He didn’t enter an injunction against the President’s immigration enforcement priorities. Juarez-Escobar remains convicted of illegal reentry and is scheduled to be sentenced in late January. At that point, he’ll almost certainly be handed over to ICE and removed without seeing an immigration judge under reinstatement of removal procedures. If that happens, I wouldn’t be surprised if the federal government leaves it be and focuses on defending the President’s immigration priorities in the Southern District of Texas where another federal judge who is no friend of the Obama Administration’s immigration policies is considering a challenge brought by several states and a handful of governors.
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