The Constitutionality of Executive Action: One Judge's Opinion

This one leaves me scratching my head. A 42-year old man from Honduras pled guilty in United States District Court to reentering the United States illegally after having been removed. He was awaiting sentencing for his crime. (We are in criminal court now, not immigration court. Immigration court proceedings are civil in nature.) Given the defendant's undocumented status, the District Court judge became concerned about the applicability of President Obama's November 20, 2014 Executive Action to the defendant's sentencing proceeding. Enough so that he saw fit to issue a lengthy Memorandum Opinion and Order which addresses two questions: 1. the legality of Executive Action and 2. the applicability of Executive Action to the defendant.

The Government pointed out that Executive Action is irrelevant to defendant's sentencing since it "solely relates to civil immigration enforcement status." The judge, however, determined that Executive Action had to be considered in light of the potential effect of the criminal proceeding on the defendant's immigration status. To me, the connection is speculative at best. Nevertheless, in his 38-page Memorandum Opinion and Order, the judge took it upon himself to determine the constitutionality of President Obama's November 20, 2014 Executive Action, scrutinizing comments made by President Obama's concerning his authority to carry out, as opposed to enact, immigration laws.

The judge concluded that President Obama's "Executive Action is unconstitutional because it violates the separation of powers and the Take Care Clause of the Constitution." He also determined that under the Executive Action the defendant is neither a priority for enforcement based on his criminal history nor a candidate for deferred action under the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) initiatives.

After issuing what amounts to an advisory opinion (courts are supposed to refrain from issuing opinions on issues that are not squarely in front of the court) condemning the constitutional underpinnings of Executive Action, the judge then goes on to order the defendant to pursue his rights under the program and submit additional briefing in support.

There is a political undercurrent to the judge's Memorandum Opinion and Order which makes me suspect that the judge just isn't a fan of President Obama or his Executive Action. Even so, in reading the Memorandum Opinion and Order its strikes me that the judge simply could not help but inject himself into a national debate. I would have to agree with the Government that it was unnecessary to decide the constitutionality of portions of Executive Action in order to determine the defendant's sentence. For the record, the judge's conclusion does not in any way overrule or invalidate Executive Action.

Timothy D. Widman is an Immigration Attorney and the owner of the Law Office of Timothy D. Widman, with offices in San Jose and Cupertino.

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