It sounded and was too good to be true yesterday afternoon when news flashes indicated that a federal judge had “ruled” that President Obama’s executive action on not prosecuting millions of illegal aliens and issuing documents to them is “unconstitutional.”

Unfortunately, the action by federal judge Arthur Schwab, a George W. Bush appointee, is merely his observation, not a ruling, contained in a memo, with no force of law.  It was, however, the very first judicial action on the presidential action (not even an executive order, but rather a memorandum).  Jonathan Adler wrote in the Washington Post:

According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals.  As a consequence,  Schwab concluded, the action exceeds the scope of executive authority. (snip)

The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.  In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.

My translation: Judge Schwab went out of his way to find an excuse to offer his opinion.  As much as I agree with him, I am afraid that this maneuver will serve to allow othrs to dismiss his opinion as grandstanding.

On the other hand, it is something, and now any other judge who expresses an opinion will be on notice that this logic is on the record.