Posted on 12/17/2014 4:04:35 AM PST by servo1969
Earlier tonight, Curtis Houck at NewsBusters observed that the Tuesday evening network news shows failed to report on an opinion issued today by a federal judge in Western Pennsylvania in connection with President Obama's illegal immigration-related executive actions last month.
Several blogs and center-right outlets noted Judge Arthur Schwab's 38-page "Memorandum Opinion" this afternoon. Not that this excuses the networks, but a search at the Associated Press's national site just before 8 p.m. on Schwab's last name (unfortunately not saved) returned nothing relevant. But shortly after 8 p.m. a story with a time stamp of 5:08 p.m. with Schwab's name finally showed up in the same search. Only the AP can explain how this could have happened.
Here is the AP's unbylined 5:08 p.m. story, presented in full for future reference, fair use and discussion purposes:
The AP's characterization of Adler's position is far too limited.
At the Washington Post's Volokh Conspiracy blog, Adler elaborated on what Judge Schwab had done (bolds are mine):
District court declares Obama immigration action unconstitutional (Updated)
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority.
... The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation. In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence. (But Judgge Schwab does — Ed.)
... this case shows, even if the states don’t have standing (in their separate legal actions — Ed.), the legality of the president’s actions could nonetheless be decided in federal court.
UPDATE ... It is quite unusual for a district court to reach this sort of constitutional issue in this sort of case. Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court’s decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab’s reasoning, but I am not persuaded. ...
It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful. The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action. It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution. President Obama’s action may be broader than many are comfortable with, and it is understandably hard to stomach given all the President’s prior statements disclaiming authority to take these steps — but such concerns are rooted in customary political norms, not judicially enforceable constitutional rules.
ADDITIONAL UPDATE: As I think about Judge Schwab’s opinion a bit more, it seems to me to be an advisory opinion. Neither party to the proceeding raised the issue and, as far as I can tell, neither party sought to have the President’s actions declared unlawful. So there was no case or controversy presenting this question. ... while Judge Schwab declared the President’s actions to be unlawful, he did not set it aside.
Adler certainly can support his analysis, but what he didn't mention is that Judge Schwab felt it necessary, despite his expressed opnion, to treat the President's executive actions as current law in order to decide the case before him. So he told the contending parties' lawyers to do the necessary research, and to come back on January 6 of next year to present their complete arguments.
If the judge ends up deciding that he has to rely on Obama's executive actions as "the law" when he decides the criminal case before him, it might present him with an opportunity to make a judicial ruling, as opposed to his current expression of opinion, that Obama's actions were unconstitutional. So despite what the AP's quoted ACLU official has said, this was more than some judge just expressing his opinion for the heck of it.
Surely the AP could have, if it had wished, done a better job of identifying Adler's views. But it seems that the wire service was more interested in presenting Schwab's opinion as an outlier than it was in attempting to explain what he really said.
Meanwhile, over at the Huffington Post, Elise Foley and Ryan Grim are warming up the leftist attack machine, claiming that Judge Schwab "Has (a) Checkered Past." Part of that "checkered past" includes the following:
He was the first federal judge to advance the scope of religious protections created by the conservative Supreme Court justices in the recent Hobby Lobby decision.
Contrary to what the HuffPo pair claims, Schwab's Hobby Lobby decision protected the religious conscience freedom of those who own closely held corporations, It stood up all the way to the Supreme Court. That's not "checkered," guys. It's the consensus — narrowly decided, but still the consensus.
Cross-posted at BizzyBlog.com.
Arthur James Schwab (born 1946) is a United States federal judge in United States District Court for the Western District of Pennsylvania.
The Mainstream Media is avoids the key facts in almost every article. The Key fact here is that the judge used the word “Unconstitutional”.
smarter than the average bear
Maybe it is just me, but I found sections of it very scary.
For instance, Obama emphasizes so much about how immigrants have accomplished much more than native born Americans. Sad.
For instance, Obama seems to imply that those thousands of people from Central America riding those trains and sneaking into the United States will someday end up with PH.d's in such fields as engineering and computer science and may end up winning The Nobel Prize one day simply because they are immigrants.
Google: I googled something like "Obama miemorandum" and it took me to the White House site.
As I said earlier, I found the memorandum scary and an insult to native born Americans. But maybe it is just me.
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November 21, 2014 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century
Throughout our Nation's history, immigrants have helped the United States build the world's strongest economy. Immigrants represent the majority of our PhDs in math, computer science, and engineering, and over one quarter of all U.S.-based Nobel laureates over the past 50 years were foreign-born. Immigrants are also more than twice as likely as native-born Americans to start a business in the United States. They have started one of every four American small businesses and high-tech startups, and more than 40 percent of Fortune 500 companies were founded by immigrants or their children.
But despite the overwhelming contributions of immigrants to our Nation's prosperity, our immigration system is broken and has not kept pace with changing times. To address this issue, my Administration has made commonsense immigration reform a priority, and has consistently urged the Congress to act to fix the broken system. Such action would not only continue our proud tradition of welcoming immigrants to this country, but also reduce Federal deficits, increase productivity, and raise wages for all Americans. Immigration reform is an economic, national security, and moral imperative.
Even as we continue to seek meaningful legislative reforms, my Administration has pursued administrative reforms to streamline and modernize the legal immigration system. We have worked to simplify an overly complex visa system, one that is confusing to travelers and immigrants, burdensome to businesses, and results in long wait times that negatively impact millions of families and workers. But we can and must do more to improve this system. Executive departments and agencies must continue to focus on streamlining and reforming the legal immigration system, while safeguarding the interest of American workers.
Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize and streamline the U.S. immigration system, I hereby direct as follows:
Section 1. Recommendations to Improve the Immigration System. (a) Within 120 days of the date of this memorandum, the Secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education, shall develop:
(i) in consultation with private and nonfederal public actors, including business people, labor leaders, universities, and other stakeholders, recommendations to streamline and improve the legal immigration system -- including immigrant and non-immigrant visa processing -- with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;
(ii) in consultation with stakeholders with relevant expertise in immigration law, recommendations to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and
(iii) in consultation with technology experts inside and outside the Government, recommendations for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.
(b) In developing the recommendations as set forth in subsection (a) of this section, the Secretaries shall establish metrics for measuring progress in implementing the recommendations and in achieving service-level improvements, taking into account the Federal Government's responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.
BARACK OBAMA
Bump; bump!
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Obama, really? you say that "the Constitution and the laws of the United States of America" gives you the power to authorize this memorandum? I'm sorry, but I don't think so.
The AP: dedicated to preserving the ignorance of the Obama electorate, and licking the crap from Obama’s boots.
What the liberal media and so called law professors fail to address is that all federal judges take an oath to personally support and defend the Constitution. Constitutional issues clearly fall within the courts purview. My view is that if a case or controversy comes before the court that inherently contains a Constitutional legality issue, whether or not the issue is brought by the parties, the judge has an independent, sua sponte sworn duty to address the matter. This has been my beef with federal judges who have run away from their sworn oath obligations time and time again with respect to Obummer. This occurred even when the issue was raised by the complainant. This cowardly behavior is egregious and treasonous and has encouraged Obummer’s lawlessness from the moment the judges ran away from Obummer’s Constitutional eligibility violation. Once you fail to discipline a recalcitrant child he will be embolden to repeat the violation and exceed it the next time. The man-child in the WH is no exception.
As best as I can tell, the Law now consists of Obama reasoning that if nobody stops him, it’s legal.
Not deporting 5,000,000 illegals: Where is the Memorandum or Executive Order that specifically states that 5,000,000 illegals won’t be deported? Thanks.
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