Arizona Sheriff Joe Arpaio's lawsuit challenging President Barack Obama's executive action awaits review. As does the larger lawsuit backed by more than 20 states, including Texas and Arizona, which argues the president has overstepped his constitutional authority in authoring the executive orders. Yet a federal judge in Pennsylvania has already chimed in on the issue, with an order declaring Obama's executive actions unconstitutional.  However, that order will have little impact aside from garnering headlines.

Judge Arthur J. Schwab, of the Federal District Court for the Western District of Pennsylvania, based in Pittsburgh, issued a controversial opinion on the president's immigration policy changes.  The judge found that Obama violated the constitutional separation of powers when he created a “systematic and rigid process” to determine which undocumented immigrants would be included.  Schwab indicated the executive orders went beyond prosecutorial discretion and constituted legislation.

According to the Constitution, the power to create legislation is held by the Congress.  This has been the basis for much of the criticism aimed at Obama's executive orders, arguing that he does not have such far reaching powers.  Alternatively, the White House administration has continued to cite past presidential precedent from Ronald Reagan and George H. W. Bush in justifying the policy changes.  While this debate may play out in later court battles between the president and those hoping to strike down his immigration reform policies, this case in Pennsylvania was surely not the right venue for this question.

The case before Judge Schwab was a criminal case involving a man from Honduras who returned to the U.S. after he was deported from the country due to a criminal charge.  Elionardo Juarez-Escobar was charged with unlawful re-entry after an arrest earlier this year for drunk driving.  Without either the prosecution or defense bringing up the issue, Judge Schwab took it upon himself to address how the November 20, 2014 announcement of immigration executive actions would apply in the case.  Many legal experts question how the presidential orders were relevant to the case.  Peter J. Spiro, a law professor at Temple University, characterized the judge's move as involving, “a lot of judicial gymnastics for the judge to get to that question.”

Judge Schwab's 38-page decision did not result in any injuction against the president's executive actions. Neither did the ruling need to address the immigration changes to determine the issues put before the judge.  More specifically, the new deferred action class does not apply to recent arrivals. Apparently Elionardo Juarez-Escobar had only recently re-entered the country, and therefore the deferred deportation application would not apply. Additionally, because of his drunk driving record, he would not likely fall under the lowest priority category for deportation.

The Justice Department does not appear to be too threatened by Judge Schwabs opinion, either written or personal.  A spokesman, who asked not to be named, criticized the judge's legal findings and approach.  “The decision is unfounded and the court had no basis to issue such an order,” said the official.  Another official added that the judge's ruling had absolutely no effect on the executive actions issued by the President.