Judge Arthur Schwab, a 2002 Bush appointee to the United States District Court for Western Pennsylvania did something Mitch McConnell and 19 other Senate Republicans were unwilling to do – declare President Obama’s executive amnesty program unconstitutional. In a memo which was part of a deportation order handed down on Tuesday, Judge Schwab found that President Obama does have the authority to use discretion in enforcing the law, but that the President had far exceeded that authority by setting up a formal system for granting legal protections to a large group of individuals who are in the country illegally.
The ruling will not overturn the President’s program, but it does send an important signal that the courts may not be inclined to ignore the clear violation of separation of powers established by the Constitution. With a number of other legal challenges to the program already in progress, this ruling is a shot across the bow that will hopefully portend further rulings in support of the Constitution.
In the memo, Judge Schwab quoted three separate occasions when President Obama stated that he did not have the constitutional authority to act unilaterally on immigration. In determining the President’s actions unconstitutional, he ruled that “Inaction by Congress Does Not Make Unconstitutional Executive Action Constitutional”, and that President Obama’s “Executive Action Goes Beyond Prosecutorial Discretion – It is Legislation”. He concluded that President Obama’s executive action violated the separation of powers provided by the Constitution as well as the Take Care Clause.
To be honest, the entire issue seems pretty straightforward if you have ever read the Constitution, unless of course, you are one of those people who have bought into the notion that “the Constitution is a living, breathing document”, whatever that means. My copy is ink on paper, or to put it simply, black and white. So far I have not seen it breathe, but I have seen it limit the power of politicians who want to have their way regardless of the limits of their authority.
Far too many politicians are willing to abandon the Constitution if it becomes inconvenient or interferes with their weekend plans. Some, like Ted Cruz and Mike Lee have incurred the wrath of their colleagues by insisting they take the document into consideration prior to casting important votes. Those of us whose freedom depends upon the government heeding the constitutional limits to its authority should be grateful to those who pay attention to it, and we should be very aware of those who are inconvenienced by it. Those who take a cavalier attitude regarding the Constitution are those who have overstayed their welcome in Washington.