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Judge Finds Obama Amnesty Unconstitutional: Establishment GOP Disagrees


A federal judge in Pennsylvania yesterday ruled that President Obama’s executive action effectively granting amnesty to millions of illegal aliens — i.e., guarantees against prosecution plus the provision of positive legal benefits — violates the Constitution.

In a 38-page opinion, Judge Arthur J. Schwab held that the president’s action exceeds executive authority.

As our friend Andrew C. McCarthy* noted in his quick take for National Review Online, “The court rejected the administration’s claim that Obama’s non-enforcement of the immigration laws is a valid exercise of prosecutorial discretion, reasoning that because the executive order creates broad categorical exemptions from enforcement, rather than evaluating aliens on a case-by-case basis, it is actually a rewriting of Congress’s statutes not a routine allocation of prosecutorial resources. Moreover, by providing effectively legislating benefits for aliens, the executive purports to exercise powers that the Constitution vests in Congress.”

All of that should have been welcomed with fireworks and Hallelujahs by Republicans on Capitol Hill.

And as Jonathan H. Adler writing for The Volokh Conspiracy in The Washington Post noted in his article on Judge Schwab’s decision, this isn’t the only case challenging the lawfulness of the Obama’s immigration actions.   

Some two-dozen states have filed suit challenging Obama’s attempt to grant amnesty through executive action.  Led by Texas, and very much in line with Judge Schwab's reasoning, these states claim that the president as exceeded the scope of executive authority in this area.  

While Adler and others wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims, this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court.

Unless, that is, the Capitol Hill Republican establishment has its way.

Let’s not forget that just last Saturday, Senators Mitch McConnell and John Cornyn, the alleged “leaders” of the Senate’s Republican Conference, joined with Democrats to vote down the Cruz – Lee point of order challenging the constitutionality of funding Obama's amnesty in the “CRomnibus.”

McConnell and Cornyn were joined by some 18 other Senate Republicans, making it a grand total of 20 Republicans who voted to endorse the constitutionality of Obama’s patently unconstitutional attempt to grant amnesty to millions of illegal aliens.

And they voted that way just a few weeks after campaigning against Obama’s amnesty and issuing all kinds of dire imprecations against Obama’s amnesty when he first announced it after the Democratic Party’s debacle in the midterm elections – the hypocrisy of their actions versus their statements is detailed in our article “The Exquisite Hypocrisy Of 20 Republican Senators.”

What’s more, now that Judge Schwab has ruled these alleged opponents of Obama’s unconstitutional amnesty have remained entirely silent – not a peep from McConnell, Cornyn, incoming Senate Judiciary Committee Chairman Orrin Hatch, Bob Corker of Tennessee, Jeff Flake of Arizona, New Hampshire’s Kelly Ayotte or any of the others that were allegedly against Obama’s unconstitutional amnesty, but were crying about being kept in Washington to actually do the work of a United States Senator on (gasp) a Saturday.

The legal realities are that Judge Schwab's ruling is likely applicable only to the case before him, so it will neither enjoin nor invalidate Obama's amnesty at any point. Its importance lies in its legal reasoning; it provides a measured and detailed rebuttal of Obama’s attempt to grant amnesty to millions of illegal aliens, and a modestly eloquent defense of the Founders wisdom in vesting legislative authority in Congress. 

However, instead of Hallelujahs, Judge Schwab's decision been met with stony silence from the establishment GOP leadership. We suggest that the Capitol Hill Republican establishment has been silent for two reasons: first, it knocks down Obama’s amnesty that they had no intention of really fighting, and secondly, it demonstrates that Ted Cruz and Mike Lee were right, and that’s something the Republican establishment just can’t abide.

*Andy McCarthy’s excellent book “Faithless Execution” drills down further on Obama’s abuse of the doctrine of prosecutorial discretion and usurpation of Congress’s constitutional powers and is well worth the read.

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