A federal district court judge on Tuesday declared that parts of President Obama’s amnesty were unconstitutional. But it is far from clear whether the ruling will have any real impact in derailing the executive order the president issued in November, which grants deferred action from removal for certain unauthorized immigrants as well as work permits. Judge Arthur Schwab said the president’s policy goes “beyond prosecutorial discretion,” but then ruled that the defendant whose case he was hearing the opportunity to seek to claim the benefit of the new policy. The case before the judge involved a man who had been deported and then re-entered the country again illegally. Before ruling on what to do with the defendant the judge ordered counsel to brief him on the applicability of the new policies. Schwab’s ultimate ruling seems contradictory on its face: the president’s amnesty is unconstitutional but the defendant should have the opportunity to avail himself of the amnesty.
It’s not surprising that this case is confusing. Indeed, several cases have been filed challenging the president’s executive action on various grounds. Two dozen states have filed suit, claiming that the president exceeded his executive authority. But the administration argues–with some good evidence–that virtually every president in the last 50 years has issued similar orders. The president’s case was hurt politically by his assertions before various audiences that he didn’t have the authority to do what he ultimately did. But that may not hurt him in court.
Whatever happens in the other cases before the court, this one will likely not have any bearing on whether the executive action moves forward. All of this sturm und drag points to the need for Congress to move forward to enact legislation. In the end, only a rewrite of immigration laws will fix the problem created by a system that serves no one’s interest.