The headlines yesterday afternoon, at first blush, were entirely unexpected. A federal judge in Pennsylvania had apparently declared President Obama’s new immigration policy unconstitutional, which didn’t seem to make any sense given that no one had brought a challenge the White House policy to this district court.
So what actually happened? This one’s a doozy.
The case involves an undocumented Honduran man named Elionardo Juarez-Escobar who pled guilty to charges of “illegal re-entry” after he was already deported in 2005. After returning to the United States a short time later, the Juarez-Escobar was eventually put on the Department of Homeland Security’s radar once again after he was arrested for drinking and driving and operating a vehicle without a driver’s license.
U.S. District Court Judge Arthur Schwab, appointed to the bench by George W. Bush, was responsible for sentencing in the Juarez-Escobar case, but Schwab decided the Obama administration’s recent executive actions might apply to the defendant, so the judge took it upon himself to go after the president’s policy at the same time.
The 38-page memo from Schwab, available in its entirety here (pdf), is a mess. More importantly, it doesn’t seem to have any legal weight – as msnbc’s Amanda Sakuma reported, the opinion “will not likely have any direct impact or serve to invalidate the policy.” The White House policy remains fully intact; Schwab’s angry missive was effectively little more than a press release.
Shoba Sivaprasad Wadhia, a law professor at Pennsylvania State University and expert in prosecutorial discretion in immigration law, told msnbc, “It strikes me as odd for a single judge to devote so many pages of a memo to his feelings about the president’s executive action when the case itself is about an individual immigrant who faces illegal re-entry charges. There’s a little bit of political theater, and maybe the judge had a bad day.”
What makes this story especially interesting, though, is appreciating just how many bad days Judge Schwab has had.
The Huffington Post noted, for example, that the far-right judge “has a highly unusual history of being removed from cases due to temperament and charges of bias.”
Schwab was removed from a case in 2008 to bring about what a higher court called “a reduced level of rancor,” a rare if not unprecedented move that a law professor told the Pittsburgh Tribune-Review at the time was “considered to be a disciplinary action.” He was pulled from a case again in 2012. Schwab recused himself from 17 ongoing cases in 2011 because of bias allegations.He was the first federal judge to advance the scope of religious protections created by the conservative Supreme Court justices in the recent Hobby Lobby decision.
Wait, it gets worse. Sahil Kapur added, “In a 2008 survey of lawyers with the Allegheny County Bar Association, Schwab received the lowest ranking among federal judges, according to a June 2008 article in the Pittsburgh Post-Gazette. On a scale of 1 to 5, Schwab ‘received the lowest scores both for impartiality, with an average score of 2.82, and temperament, with an average of 2.21,’ the paper reported.”
And then, there was the cherry on top: Fox News’ Sean Hannity told his audience about the ruling, “I gotta tell you something, it almost could’ve been written by me.”
What a perfect summary of the ruling on the merits.
The next step would ordinarily be an appeal, but in this matter, it’s not even clear if Judge Schwab’s tirade is appealable – he wasn’t presented with a case challenging the president’s policy and his outrage doesn’t appear to actually do anything to the policy.
In other words, you may receive an email from your crazy uncle who watches Fox News all day saying, “See? I told you Obama’s moves on immigration would be struck down by the courts!” You can then safely reply, “That’s not what happened here.”