U.S. District Judge Arthur Schwab, sitting in Pittsburgh, has taken considerable heat in some legal circles for ruling that parts of President Barack Obama's deportation amnesty are unconstitutional. The rap against Tuesday's ruling is that it has little or no practical effect because it came in a technically unrelated criminal deportation case. Nonetheless, Judge Schwab's finding stings: “President Obama's unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore is unconstitutional.” Credit the judge for having the guts to say so. And look for his legal rationale to be part of the eventual Supreme Court ruling that Mr. Obama truly is a constitutional reprobate. [Bolding in original]While the braintrust acknowledges "the rap" about the ruling ("that it has little or no practical effect"), you should note that they don't come out and agree with that point. They do, however, agree with the finding.
Which is odd, considering how one of their own sources on Constitutional Law, Ilya Somin, a libertarian (he's an Adjunct Scholar at the Scaife-funded Cato Institute) lawyer writing at Volokh Conspiracy seems to disagree:
Today’s federal district court decision striking down President Obama’s executive order on immigration has serious flaws. Strikingly, Judge Arthur Schwab attempts to dispose of a complex and important constitutional issue in just three or four pages. In the process, he ignores important weaknesses in his position.And more damaging to the braintrust's argument:
If the Supreme Court were to adopt Judge Schwab’s reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president’s order was. Neither possibility is particularly attractive, and neither is required by the Constitution.In fact at Reason.com, Somin out right states:
In reality, Obama’s actions were well within the scope of executive authority under the Constitution. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences. Obama’s decision to defer deportation is in line with those of past presidents.Can't these guys get their stories straight?