From the linked article:
“Judge Stephen A. Higginson dissented from Tuesdays ruling, saying he would have left the fight over immigration policy to the White House and Congress, saying Mr. Obama should have broad discretion to decide who gets deported and how he goes about that.”
There’s so much wrong with that opinion, if that’s indeed the gist of his dissent.
1. Congress’ “failure to act” is effectively saying “no”, which is the opposite of giving Obama permission to move forward regardless.
2. Obama’s actions are in violation of existing law, not a matter of his discretion.
3. Failure to secure borders, issuing work permits, ordering INS not to deport - at some point, even if he has legal discretion - those are all matters of failure to implement the law, for which he should be removed from office.