Right-wing ideologues, not just off the bench but also ON it, do their damedest to pervert the legal system

Dim-bulb Western PA District Court Judge Arthur J. Schwab, who yesterday struck down the president's executive order on immigration, is pictured here in 2012, when for the second time in four years the Third Circuit U.S. Court of Appeals took the extraordinary step of removing him from a case.

"It's one thing to have your own personal beliefs. It's quite another to use your official powers and your official office to subvert the court and the lawful process."

-- attorney George Felos

by Ken

The funny thing is, you might guess that attorney Felos, quoted above, is somehow involved in the stuningly inept decision by a GWB-appointed Western Pennsylvania district court hack declaring the Obama executive order on immigration unconstitutional. Felos's observation certainly applies.

In fact, though, Felos is the lawyer who represented Michael Schiavo in 2002 when Florida's then-Gov. Jeb Bush served as the point man for the brigade of ideologically diseased pandering pols who did everything in their power to force Schiavo's brain-dead wife Terri to be kept alive artificially, for no reason except to satisfy their own contrary-to-law beliefs.

In the wake of Jebbie's declaration that he's considering a 2016 presidential run, ThinkProgress spoke to both Schiavo and Felos ("Terri Schiavo's Husband Speaks Out On Jeb Bush's Presidential Bid"). As Josh Israel reports, neither is enthusiastic about the prospect: "Both expressed concern that Bush's record was one of government interference and opposing individual liberty."

Josh recalls for us (with lots of links onsite):

Though Michael Schiavo got a court order in 2002 to remove his wife’s feeding tube — he said his wife had not wanted to be kept alive artificially — Jeb Bush intervened, pushing the state legislature to pass an unconstitutional bill in a special session giving him authority to order the feeding tube reinserted. When a state judge ordered it removed again, Felos told ThinkProgress, Bush “manipulated the organs of state government in order to try to evade the court order.”

“Through the Dept. of Children and Family Services and through the Department of Law Enforcement they tried in the courts to ignore the higher court pronouncements – this was documented in an article by the Miami Herald,” he recalled, though, “when local authorities said you’re going to have to go through us in order to get her, and the state law enforcement agency backed down.”

Though Bush, then-U.S. Senate Majority Leader Bill Frist (R-TN), and social conservative activists protested that Terri Schiavo was not in a persistent vegetative state, an autopsy confirmed that she had been.

Josh reports further that Felos --

also recalled that after Schiavo’s death, Jeb Bush went after Michael Schiavo personally, asking the state’s attorney to investigate whether he had called 911 fast enough. “It was very odd, almost like a personal vendetta the governor had towards Michael Schaivo.” The state’s attorney found no evidence against him and closed the case. “The propriety of using your office to hunt and harass people, as the governor did to Mr. Schiavo after his wife’s death, I think raises significant questions about his judgment and his character,” Felos said.

When it comes to "subvert[ing] the court," though, nothing beats having dishonest, legally incompetent judges sitting right there on the bench, spinning legal fantasies blown out of their butts.

Which brings us back to Western Pennsylvania District Court Judge Arthur J. Schwab, who pounced on the opportunity of a case with only the thinnest, most tortured connection to the executive order, and applied to it an almost total ignorance of immigration law and the Constitution to come up with a result that came blown out of his butt.

ThinkProgress legal eagle Ian Millhiser was all over this astonishing development yesterday:

In an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy, a George W. Bush-appointed judge in Pennsylvania declared President Obama’s recently announced immigration policy unconstitutional on Tuesday. Because the policy “may” apply to a defendant who was awaiting sentencing of a criminal immigration violation, Judge Arthur Schwab decides that he must determine “whether the Executive Action is constitutional.”

In case the suspense is killing you, Ian continues: " He concludes that it is not."

Yesterday Ian spent some time going through the startlingly brief (for such a significant decision) rationale for the decision, a major portion of which is devoted to rambling about political comments made by President Obama, which have no demonstrated relevance to the legal basis for his executive order. Ian then showed that Judge Schwab really doesn't seem familiar with the actual legal and constitutional issues here, and among other things totally ignores probably the most relevant federal precedent,Arizona v. United States,

where the Supreme Court said that the executive branch has “broad discretion” [this link is to a November 19 post of Ian's, "The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order" -- Ed.] in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”

Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.

After doing his best to find legal grounding in Judge Schwab's ruling, and failing, Ian wrote yesterday,

So Schwab’s legal analysis is thin. He spends nearly as much time making what appear to be political attacks on the president as he does evaluating actual legal matters. And what little legal analysis he does provide fails to cite key Supreme Court decisions that seem to contradict his conclusion. Judge Schwab traveled far along a very thin branch to reach this decision, and he anchored his decision with little grounding in legal authorities.

Moreover, it’s not clear what effect, if any effect at all, this decision will actually have. The judge does not issue an injunction halting the new immigration policy. Nor does he even state with certainty that the actual defendant in the case before his court will benefit from an order declaring the immigration policy unconstitutional.

Today Ian notes that Judge Schwab's shaky procedural grounds are of concern even Mr. Torture himself, John Yoo, who declares himself (in a National Review Online post called "Was Today's Ruling Against Obama's ImmigrationOrders Judicial Activism?") in sympathy with the view that the president's executive order is executive overreach but nevertheless --

criticizes Schwab for opining on the immigration policy’s constitutionality when the issue was not properly before his court. As Yoo notes, “[t]his is not a case where the executive order applies, because the Obama administration is not allowing an illegal alien to remain in the country.” Thus, the case presents “no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in [this defendant’s] case.”

RIGHT-WING IDEOLOGUES CARE ABOUT
BEING RIGHT-WING, NOT BEING RIGHT

Of course it has become standard operating practice for right-wing ideologues (GOPSOP?) to declare the president's executive order unconstitutional, despite their near-total ignorance of the relevant legal and specific constitutional issues. But then, if you're a confirmed right-wing liar-obfuscator, with a deep-gut-level conviction that facts are a left-wing conspiracy, then you just naturally blow with whatever whizzes out of your butt.

Ian looks more closely at the case of John Yoo, who he points out "once argued that the president’s power to act unilaterally is so expansive that the chief executive could order interrogators to crush a child’s testicles" (the title placed by the poster on this 2006 YouTube clip is "John Yoo Says President Bush Can Legally Torture Children"). Specifically, he notes "the former Justice Department attorney's transformation from a proponent of largely unchecked executive power under Bush into a man deeply concerned with government action under Obama." Suddenly Mr. Torture has become ever so fastidious about the issue of executive "reach" -- now that the chief executive is no longer a right-wing sociopath.

Yoo has argued that the Supreme Court decision upholding much of the Affordable Care Act “did great violence” to constitutional limits on federal power. Yet, during the Bush Administration, Yoo offered a view that, if followed to its logical conclusion, would grant President Obama the authority to implement many provisions of Obamacare even if Congress had never passed the law in the first place.

During the Bush years, Yoo argued that the Constitution permits the president to judge what steps are “necessary” to prosecute a war.

To be sure, this attitude hasn't been confined to legal commentators. From the outset of the Obama administration, a president who has for the most part exercised his powers with exceptional timidity has been assaulted as a monstrously overreaching executive tyrant by the usual band of Lying Liars of the Right (stand up and take a bow, George will) by the very media thugs who hailed George W. Bush's every exercise of dictatorial powers. In the legal arena, Ian notes, "Yoo seems particularly willing to advocate in favor of expansive powers for presidents of his party and narrow contractions of federal power when Democrats are calling the shots." In which connection, Ian suggests, Yoo is "a harbinger of a new legal era."

Data shows that the best predictor of whether a lawsuit challenging portions of Obamacare will succeed is whether a majority of the judges hearing the case are Republicans. Justice Antonin Scalia authored an opinion that provided a clear rationale for upholding the Affordable Care Act several years before he joined another opinion attempting to repeal the entire law. Judge Schwab rejected Obama’s immigration policy without even feeling the need to cite precedents supporting the core of his reasoning.

Yoo’s flexible approach to the law, in other words, is hardly limited to Yoo himself. It is increasingly easy to find on the federal bench.

Yesterday Ian pointed out that, while Judge Schwab's ruling striking down the immigration executive order is a sham as legal argumentation, "immigrant families would be wrong to write off the threat his decision could present."

There was a time when the constitutional challenges to the Affordable Care Act were widely dismissed by legal experts — Ronald Reagan’s former solicitor general said he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the Supreme Court struck the law down — yet these challenges rapidly gained momentum after a few Republican judges reached out to strike the law down. The same can be said about the legal theory in King v. Burwell, a lawsuit currently before the Supreme Court that seeks to gut much of Obamacare.

It remains to be seen whether Schwab’s opinion — thin though its reasoning may be — will also grant legitimacy to the case against the president’s immigration policy.

When the courts are packed with dimwitted thugs, chosen for their ideological thuggery I guess it's not a surprise that we wind up with dimwitted legal hooliganism.

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