There has been much excitement in conservative circles about this week’s ruling by a federal district court judge that the “executive amnesty” declared by President Barack Obama is unconstitutional. The judge, Arthur J. Schwab, is likely correct on the merits. However, it seems that the issue had limited relevance, if any, to the deportation case he was deciding.
As Prof. Jonathan H. Adler noted at the Volokh Conspiracy blog, “As I think about Judge Schwab’s opinion a bit more, it seems to me to be an advisory opinion. Neither party to the proceeding raised the issue and, as far as I can tell, neither party sought to have the President’s actions declared unlawful. So there was no case or controversy presenting this question.”
The response from the Department of Justice was to slam the Schwab decision on both procedural and substantive grounds.
It is difficult to disagree with some of the important points Schwab raises. For example, Schwab notes that “inaction by Congress does not make unconstitutional executive action constitution.” That fact used to be obvious–before Obama.
Yet because little of Schwab’s reasoning actually deals with a judicial question at hand, much of his ruling is what appellate lawyers call “dicta”–having some persuasive authority at best, but not controlling the future decisions of other courts. In the end, it is only Congress that can defend its constitutional prerogatives–not judicial activism, even of a conservative variety.
Senior Editor-at-Large Joel B. Pollak edits Breitbart California and is the author of the new ebook, Wacko Birds: The Fall (and Rise) of the Tea Party, available for Amazon Kindle.
Follow Joel on Twitter: @joelpollak