The judge stated that the executive order might have an effect on sentencing, and so pre-emptively held that it was unconstitutional. He axed it in his court. He axed it in his ruling.
One point of the article is that this judge is a notorious axe-grinder and therefore should not be feared as a harbinger of future judicial disposition. That take-away should have been clearer, because this background research is useful for more than wound-licking indignation.
Your main point, that the ruling was not dispositive, should also have been clearer and being news to me, removed my dread of reading more about the ruling. For that, my thanks.
Well, that and providing instructions to other conservative judges as to how they should write their opinions finding it unconstitutional. You can rest assured that this activist judge has been all over the intertubes assembling this argument and has (without a doubt in my mind) been in touch with radical activist folks like Judicial Watch.
The criminal case before him was about an undocumented immigrant who was prosecuted for illegally re-entering the country after he was removed. AILA pointed out that neither side had asked the court to weigh in on Obamaâs executive actions; Schwab did so on his own without holding a hearing on the presidentâs actions, the group said.
Holy crap. I should have read the opinion. I had no idea that this guy was trampling over the Due Process Clause, Article III and Article II all at the same time.
It will not be ignored, but it sets the stage for a legal appeal of the EO by establishing a precedent. It may also can give the defense an appeal opportunity where the EO can be used to overturn a verdict against their client. That this was never presented as an argument and Judge Schwab interjected it into the case tells me that this judge is a GOP tool, and like all tools, is doing what his handlers tell him to do. That it is in Pennsylvania is not surprising. The GOP is already touting this as justification for any actions that they choose to take, but if Jeb Bush does decide to run in 2016, he will have a hard time walking this one back, since his brother appointed this clown and Bush supports immigration reform in favor of immigrants. That is why this might be very important.
Fortunately, this isnât going to be decided by the Third Circuit on the merits. itâs going to be reversed and vacated by the Third Circuit on standing/subject matter jurisdiction grounds and SCOTUS isnât going to touch it.
Federal judges canât just go off on their own issuing advisory opinions on issues that donât affect the status of the parties before them. The presidentâs EO had nothing to do with the defendant in this case. The parties to the action have to have standing, i.e. a personal stake in the outcome of a litigated issue, in order for a Federal court to hear and rule. And, in particular, judges canât just go off and write opinions dealing with issues not raised by the parties or the facts of the case other than the issue of whether the court has jurisdiction to hear the case in the first place.
What weâre seeing here is the continuing effect of Bush II Brownie crony incompetence at its worst. A federal judge that lacks even the most elementary grasp of the limits imposed on federal jurisdiction by the Case or Controversy Clause of Article III is qualified to be a federal judge. The Third Circuit is going to be spending a lot of time reversing this numbnut for the rest of his life.
Did you actually read the article or just the headline? Do you have some sort of an agenda? Your comment is pathetic and inaccurate. I know you can do better in the future.
Sahil seems to be a journalist who has his facts straight. This article told me what I wanted to know about this dysfunctional judge and his biased monkey mind. TPM is the first news blog I hit in the morning to find out about politics and sometimes to be entertained by the stupidity of our elected officials.
Sounds like a judge who doesnât understand the level of professionalism and ethics required of his position. However, throwing in the criticism of the judge for the order that had been proposed by a defendant where the judge only made âtwo substantive changesâ shows a complete lack of understanding how most trial level courts work in most jurisdictions in this country.
At the trial level, caseloads have soared while administrative support has been cut back. Judges donât have time to write orders from scratch in all but the most exceptional of circumstances. After a hearing, a judge may order both parties to draft proposed orders. Frankly, that irks the attorneys. Weâd rather have the judge make a decision based on the memos, testimony, evidence and argument up to that point. Otherwise, one side will be putting in significant time drafting a document that is more or less a waste of time. The preferred option from the lawyersâ viewpoint is for the judge to say, âOkay, you (pointing) win. Draft a proposed order and submit it to me by the end of the week with a copy to the other side.â That way, the losing party gets a chance to speak up if there is something egregious contained in the proposal that isnât supported by evidence, argument or law. Now, the losing party isnât going to LIKE what the order says and will disagree with most or all of it.
Judges like this way of doing things because it saves them work and because they hate being overturned on appeal. Therefore, they want the winning party to draft the order because that party doesnât want the order overturned on appeal either. They write the order with a keen eye for being able to defend it on appeal. Winning attorneys who are smart wonât throw in every possible basis for justifying the decision, just the ones that are legally sound and sufficient to support the decision. You actually get higher quality orders.
Iâm not arguing this judge isnât an unprofessional jerk, but stick to writing articles that criticize him for things that are actually over the line and leave out the one that shows a lack of understanding of the realities of the legal system.
It is a District Court opinion. As such, it does not constitute âprecedent.â At best it can be considered âpersuasiveâ by other District Courts, but I donât think that is very likely. District Courts routinely disagree on this kind of stuff and ignore ridiculous opinions like this one from other District Court judges. The EO also cannot be used by the defense to âoverturn a verdict against their client.â It simply canât. The EO merely outlined prosecutorial discretion so there is nothing to even really point to on appeal. Moreover, the case involved a plea deal and if there is a deal, there wonât be an appeal. Furthermore, there was argument on the EO in the District Court. If you look at the opinion, the Court directed the parties to provide briefing on it, which they did. The US Attorneys plainly found the exercise silly and meaningless as they prepared only a 4 page brief on the issue. Ultimately the opinion will likely have no effect whatsoever on the outcome of the case and it in no way stops the government from carrying out the EO and therefore there would be no reason for either of the parties to waste their time appealing it.
Not just wrong. Likely without subject matter jurisdiction. One of the cardinal rules of federal jurisdiction both as written and as interpreted is that judges donât get to issue âadvisory opinionsâ that have fuck all to do with the case in front of them. For instance, neither party has any incentive to âappealâ this silly little rant because, duh, the EO has fuck all to do with the criminal prosecution.
âAs a longtime supporter/reader of TPM I really hate to see you going down this path.â
Ditto. This is, unfortunately, one of the main reasons Iâm not renewing my TPM Prime subscription this year.
The issue here isnât strictly about proposed orders, but about opinions written by one of the parties, and especially when there has not yet been a full hearing. as in Bright v. Westmoreland County:
Money quote:
Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a partyâs proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.
Second money quote:
Courts and judges exist to provide neutral fora in which persons and entities can have their professional disputes and personal crises resolved. Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness. We therefore hold that the District Courtâs adoption of the appelleesâ proposed opinion and order, coupled with the procedure it used to solicit them, was improper and requires reversal with a remand for the court to reevaluate the appelleesâ motion to dismiss in a procedure consistent with this opinion.
So donât blame Sahil for what the Third Circuit Court of Appeals said, namely,
At our request, counsel for the appellees supplied us with a copy of the proposed memorandum opinion and order that they had submitted to the District Court. This proposed opinion is nearly identical to the opinion filed by the District Court. Other than minor grammatical and stylistic edits, the District Court made only two substantive changes.
Trial judges may like to work that way, but appellate courts can take a dim view of it. The realities of the legal system can vary depending on where you are on the ladder.
Itâs embarrassing when a person who is so ill-suited to the job makes it to such a high-level court. Ah, to hell with it. We have Scalia and Thomas sitting in the Supreme Court, so stuff like this should neither surprise nor embarrass me at this point.
For instance, neither of the parties to this lawsuit has any substantive incentive to appeal from or even address the judgeâs âorderâ regarding the EO because it has no consequences for them. They did not have standing to enforce or challenge it to begin with, because it had no impact on the matter before the court. The DOJ might appeal just for the sake of institutional sanity, to get a ruling that the judge was without subject matter jurisdiction to decide sua sponte the legitimacy of an executive action that neither of the parties would have had standing to raise. Idiot judge, and I mean that seriously, federal judges have a huge workload and most work like crazy (sometimes work too much in fact) to AVOID big decisions.
