When judges and presidents go rogue

Elionardo Juarez-Escobar, a 42-year-old Honduran landscaper, was driving through a Pittsburgh suburb one evening last April when he saw a police sobriety check ahead. Drunk and without a license, he tried to avoid it. New Sewickley Township police managed to pull him over anyway.

{mosads}When they did, they found empty beer cans in the back seat, a minor named Henry Gomez on the passenger side and an inebriated driver. Escobar failed a field sobriety test, blowing 0.18, more than twice Pennsylvania’s legal limit. He was arrested and charged with two counts of driving under the influence, corruption of minors, furnishing liquor to a minor and driving without a license.

If a federal judge has his way, Escobar’s case will become the most consequential DUI in U.S. history.

That case began its transformation from the quotidian to the cosmic when local authorities determined that Escobar had twice entered the U.S. illegally. Immigration officials deported him in December 2005. Some time after that (Escobar says he can’t remember when), he crossed the border into Texas, eventually making his way to Pittsburgh, where he reunited with his brother.

Local law enforcement turned Escobar over to federal authorities, who imprisoned him on July 22. A week later, a grand jury indicted him on charges of having returned to the U.S. after his deportation, a criminal offense. Escobar’s court-appointed attorney advised him to enter a guilty plea, clearing the way for a December court date before Federal District Court Judge Arthur Schwab.

In the normal course of events, Schwab would have accepted Escobar’s plea, sentenced him to time served, and handed him over to immigration authorities for a civil proceeding, which would determine whether he would again be deported.

But on Nov. 20, President Obama announced that his administration would grant “deferred action” to certain classes of undocumented individuals, sparing them deportation and freeing them to “come out of the shadows.” Henceforth, the government would apprehend and deport only those who pose “a demonstrable risk to national security” or who have been “convicted of specifically enumerated crimes.” The U.S. would deport “felons,” as the president summed up the new policy, “not families.”

Schwab asked prosecutors and Escobar’s lawyers to prepare briefs on whether the president’s action affected the case. Both concluded that it did not. Neither the defense nor the prosecution alleged that the administration’s actions were unconstitutional. Both agreed that the president’s freshly minted immigration policies did not apply to the criminal proceedings before the court, only to the subsequent civil deportation proceedings, if at all.

Schwab was undeterred. In the order he issued last week, the federal judge declared the president’s policy unconstitutional. He further held that if it were constitutional, Escobar must be given the opportunity to withdraw his guilty plea, since Schwab is persuaded that the defendant is more “family” than “felon.” Schwab sees that rhetorical flourish by the president’s speechwriters as capturing the critical legal distinction between those subject to deportation and those who may qualify for lawful status under the new policy.

Schwab may be correct as to the constitutionality of the president’s actions. He notes that the president himself on multiple occasions said that only Congress can change immigration policy. Schwab agreed with that now-discarded presidential view. “Inaction by the Congress,” he wrote, “does not make unconstitutional executive action constitutional.”

He rejected the president’s recent contrivance that he has authority to make Congress an offer it can’t refuse: enact an immigration policy to my liking or watch me establish such a policy on my own. “Congress’s lawmaking power,” Schwab wrote, “is not subject to presidential supervision or control.”

He also spurned the president’s assertion that his action amounts to nothing more than prosecutorial discretion, since it “provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination,” effectively extending “substantive rights” to millions. The Constitution reserves the power to establish such sweeping policy preferences to Congress, not the President, Schwab rightly observes.

But if he is correct in concluding that the president’s “unilateral legislative action violates the separation of powers,” Schwab is guilty of similar unconstitutional excess. The validity of the administration’s executive action was not before the court. There was no disagreement between defense and prosecution on the only matter Schwab was asked to adjudicate: the defendant’s guilt. Escobar pleaded guilty. Schwab’s contortions in using the Escobar case to opine on the constitutionality of the immigration policy are every bit as flawed as the defenses the administration has advanced for that policy. Judicial overreach is no remedy for executive overreach.

The president has lately gone on an imperial joyride, speeding through constitutional red lights and careening into the oncoming lane of congressional authority. Now he has met his robed doppelganger: a judge as indifferent to constitutional limits on judicial power as the president is to constitutional limits on executive power.

Schwab’s reasoning is not likely to prevail. If it does, a president gone rogue will have met his match in a judge gone rogue.

Badger was formerly deputy assistant to the president for legislative affairs, where he helped formulate the George W. Bush administration’s policy and legislative strategy.