President Obama’s November 20, 2014, Immigration Executive Action¹ Ruled Unconstitutional

Citing separation of powers and President Obama’s numerous previous public statements that he does not have the legal authority to issue an Executive Order or Executive Actionon immigration, U.S. District Court Judge Arthur Schwab of the Western District of Pennsylvania, ruled that the President’s Executive Action on immigration, announced on November 20, 2014, is unconstitutional.

In an opinion issued December 16, 2014, Judge Schwab cited President Obama’s statement that his Executive Action: 1) was justified by Congressional inaction on immigration; and 2) was authorized by his prosecutorial discretion to defer removals of those not legally present in the United States.

Judge Schwab then stated, “President Obama contended that although legislation is the most appropriate course of action to solve the immigration debate, his Executive Action was necessary because of Congress’ failure to pass legislation, acceptable to him, in this regard. This proposition is arbitrary and does not negate the requirement that the November 20, 2014, Executive Action be lawfully within the President’s executive authority. It is not…Perceived or actual Congressional inaction does not endow legislative power with the Executive.”

The Judge went on to state, “While ‘the power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration’ it does not include unilateral implementation of legislative policies” (citing a June 23, 2014, US Supreme Court case).

In addition, the Court found “This Executive Action ‘crosses the line,’ constitutes ‘legislation,’ and effectively changes the United States’ immigration policy. The President may only ‘take Care that the laws be faithfully executed…’, he may not take any Executive Action that creates laws” (citing the US Constitution, Article II, § 3).

Judge Schwab also rejected President Obama’s reliance on prosecutorial discretion because 1) “…it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based on arbitrary classification, rather than case-by-case administration; and 2) it allows undocumented immigrants, who fall into these broad categories, to obtain substantive rights.”

In conclusion, the Judge stated, “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.”

This opinion can be viewed here.

Dykema will continue to provide updates as information becomes available.

For more information about this and other Immigration issues, please contact the author of this alert, James G. Aldrich, at jaldrich@dykema.com or 248-203-0583.

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[1] President Obama’s announcement is being referred to in the title as “Executive Action” instead of “Executive Order” due to numerous media reports that he has not actually signed any order and these steps are, instead, based on a memorandum issued by Secretary of Homeland Security, Jeh Johnson in addition to the fact is not listed on the White House website with other executive orders as of the time this was written: http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders,

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