U.S. Calls Judge Questioning Immigration Order 'Flatly Wrong'

A federal judge who said President Barack Obama’s order loosening immigration restrictions is illegal was “flatly wrong,” the Department of Justice said in a rare public criticism of the judiciary.

The judge may have been the first to take a position on Obama’s Nov. 20 order allowing as many as 4 million undocumented immigrants to remain in the U.S., in a case involving the possible deportation of an immigrant from Honduras. The president’s directive is being challenged by 24 states in federal court in Brownsville, Texas.

The sentencing matter before U.S. District Judge Arthur J. Schwab in Pittsburgh didn’t involve a direct challenge to the executive order and the judge didn’t bar its implementation. The legality of the order was brought up by the judge, a 2002 appointee of Republican president George W. Bush, and not by the government or the defendant.

The Justice Department said in an e-mailed statement yesterday that Schwab had overreached.

“The decision is unfounded and the court had no basis to issue such an order,” according to the statement. “No party in the case challenged the constitutionality of the immigration-related executive actions and the department’s filing made it clear that the executive actions did not apply to the criminal matter before the court. Moreover, the court’s analysis of the legality of the executive actions is flatly wrong.”

Law Unsettled

Schwab, while saying the law remained unsettled, echoed the view of some Republican officials, commenting that Obama’s order “goes beyond prosecutorial discretion -- it is legislation,” thus making it unconstitutional.

“Presidential action may not serve as a stop-gap or bargaining chip to be used against the legislative branch,” said Schwab, who noted that Obama, a Democrat, had told the public he was imposing the order in part because Congress had failed to pass comprehensive immigration reforms.

Schwab described his findings on the order in connection with assessing how it might apply to Elionardo Juarez-Escobar, a 42-year-old immigrant who came to the U.S. illegally years ago and had been referred to the U.S. Department of Homeland Security after facing charges this year for drunk driving.

Juarez-Escobar had worked with his brother, a U.S. citizen, in a landscaping business. The White House order specifies that parents of citizens or lawful residents could be eligible to remain in the U.S. Juarez-Escobar could qualify as “family” and possibly be eligible for similar treatment “consistent with the over-arching sentiment behind the executive action,” said the judge, who tentatively scheduled the sentencing for January.

Republicans leaders have assailed Obama’s immigration order as an end-run around Congress’s legislative authority before their party takes control of the Senate in January.

U.S. Senator Rand Paul, a Kentucky Republican, has introduced a bill seeking to overturn the order.

Not King

“The president is not a king and he does not have the power to enact laws then execute his own laws,” Paul said in a statement posted to his website. “Our Constitution is being violated by this executive order and other actions by the Obama administration to govern by executive fiat.”

Alonzo Burney, a lawyer for Juarez-Escobar, didn’t immediately return calls and e-mails yesterday after regular business hours seeking comment.

A spokesman for the White House also didn’t immediately respond to an e-mail yesterday after regular business hours.

The case is U.S. v. Juarez-Escobar, 2:14-cr-00180, U.S. District Court, Western District of Pennsylvania (Pittsburgh).

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