Judge Blasts Obama’s Immigration Order

PITTSBURGH (CN) - President Obama's executive order on immigration violates the separation of powers and is unconstitutional, a federal judge in Pittsburgh ruled Tuesday.

U.S. District Arthur J. Schwab issued the opinion in United States v. Elionardo Juarez-Escobar.

The Department of Justice retorted that Judge Schwab is "flatly wrong," and that the ruling would not stop it from implementing the executive order.

The Department of Justice said that the executive order applied to civil immigration cases, not criminal matters.

Juarez is a 42-year-old Honduran man who has lived in the United States since sometime before 2010 after re-entering the country after a 2005 removal order.

Juarez worked in his brother's landscaping business in Pittsburgh before being arrested in June for a traffic violation.

The arresting officers found empty beer cans in his back seat, and he was driving with a minor, according to the judge's summary of the case. Juarez was charged with two counts of driving under the influence.

President Obama's Nov. 20 order allowed a path to residency for some undocumented immigrants who have lived here for more than five years and who have no serious criminal history.

Judge Schwab ruled that the order was a form of executive legislation, going beyond mere "prosecutorial discretion" by providing an entire "systematic and rigid process" for residency rather than case-by-case examination.

Congressional impasse, Judge Schwab wrote, is not enough to justify the action, quoting the president's May 10, 2011 remarks acknowledging that Congress' failure to pass an immigration bill does not allow presidential authority on the matter.

"Now, I know some people want me to bypass Congress and change the laws on my own," Obama said at the time. "Believe me, the idea of doing things on my own is very tempting. I promise you ... That's not how our democracy functions. That's not how our Constitution is written."

Schwab wrote that upholding the Nov. 20 executive order would, for example, allow the president to instruct the IRS to change the rates of capital gains taxes.

"Perceived or actual Congressional inaction does not endow legislative power with the Executive," Judge Schwab wrote. "This measurement - the amount/length of Congressional inaction that must occur before the Executive can legislate - is impossible to apply, arbitrary, and could further stymie the legislative process."

Schwab, however, ruled that if the order were constitutional, Juarez would fit the criteria for amnesty and would not be subject to deportation.

The Justice Department said in a statement that Schwab's ruling was "unfounded" and that he "had no basis to issue such an order."

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