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No, ‘Prosecutorial Discretion’ Does Not Justify Obama’s Lawless Amnesty

Posted by on Nov. 24, 2014 at 9:38 AM
  • 2 Replies

There are also many more fraud offenses committed in the U.S. than there are law-enforcement resources to prosecute them. So federal prosecutors, in an exercise of prosecutorial discretion, will often establish a fraud threshold amount - say, $10,000 - beneath which they will not open a case. But that does not mean you now have a right to steal $9,999.

If police in a big city are overwhelmed with violent crime and focus their attention strictly on murder, maiming, and rape, that does not mean it is now legal to go around punching people in the nose.

 

There are many thousands of trials, and in them it is not unusual for witnesses to lie. It would not be possible to launch a perjury prosecution against every person who gives false testimony under oath. But this necessary exercise of prosecutorial restraint is not a license to commit perjury - an invitation to lawlessness that would destroy the judicial system.

 

If the Justice Department decides it is going to target its anti-drug-trafficking resources against big time heroin and cocaine distributors, that does not mean that personal possession and sale of small amounts of those drugs is now legal - or, indeed, that the government should facilitate drug possession and sales.

Prosecutorial discretion means you are not required to prosecute every crime - which, since doing so would be impossible, is just a nod to reality. It does not mean that those crimes the executive chooses not to enforce are now no longer crimes. Prosecutorial discretion has never meant that the passive act of non-enforcement has the legal effect of repealing criminal laws enacted by Congress. And it has never even been suggested, because to do so would be absurd, that under the doctrine of prosecutorial discretion, the executive decision not to prosecute certain crimes means the people who commit those crimes should be rewarded for committing them. That, of course, would only encourage others to commit them on a more massive scale.

Yet that is President Obama's theory. He is claiming not only the power to determine what immigration laws get enforced and which illegal immigrants get prosecuted - power he unquestionably has. He also claims the power to declare (a) that criminal acts are somehow lawful - that illegal aliens now have a right to be here - just because Obama has chosen not to prosecute them; and (b) that those who engage in this unprosecuted activity will be rewarded with benefits (lawful presence, relief from deportation, work permits, etc.), as if their illegal acts were valuable community service.

That is an utter perversion of prosecutorial discretion and a blatant usurpation of congressional power. Only Congress has the power to repeal criminal laws and confer positive legal benefits on non-Americans.

As you listen to the president try to explain himself tonight, you are going to hear a lot about how his plan is just a sensible exercise of prosecutorial discretion - how he is just using the sparse resources Congress gives him to enforce the law in more efficient ways. It will sound unobjectionable - even appealing.

But understand, it will be lawless and an invitation to waves of law-breaking. Obama is not merely prioritizing crimes; he is equating his non-enforcement of congressional statutes with the repeal of those statutes. He is not merely ignoring some lawbreakers so he can pursue others; he is declaring that categories of non-Americans of Obama's unilateral choosing have a right to break our laws and be rewarded for it.

That is not prosecutorial discretion. It is a lawless betrayal of the president's constitutional duty to execute the laws faithfully.

- Andrew C. McCarthy is a policy fellow at the National Review Institute. 

by on Nov. 24, 2014 at 9:38 AM
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Ednarooni160
by on Nov. 24, 2014 at 1:12 PM
2 moms liked this

Prosecutorial discretion means you are not required to prosecute every crime - which, since doing so would be impossible, is just a nod to reality. It does not mean that those crimes the executive chooses not to enforce are now no longer crimes. Prosecutorial discretion has never meant that the passive act of non-enforcement has the legal effect of repealing criminal laws enacted by Congress. And it has never even been suggested, because to do so would be absurd, that under the doctrine of prosecutorial discretion, the executive decision not to prosecute certain crimes means the people who commit those crimes should be rewarded for committing them. That, of course, would only encourage others to commit them on a more massive scale.

Yet that is President Obama's theory. He is claiming not only the power to determine what immigration laws get enforced and which illegal immigrants get prosecuted - power he unquestionably has. He also claims the power to declare (a) that criminal acts are somehow lawful - that illegal aliens now have a right to be here - just because Obama has chosen not to prosecute them; and (b) that those who engage in this unprosecuted activity will be rewarded with benefits (lawful presence, relief from deportation, work permits, etc.), as if their illegal acts were valuable community service.

That is an utter perversion of prosecutorial discretion and a blatant usurpation of congressional power. Only Congress has the power to repeal criminal laws and confer positive legal benefits on non-Americans.


Obama is not merely prioritizing crimes; he is equating his non-enforcement of congressional statutes with the repeal of those statutes. He is not merely ignoring some lawbreakers so he can pursue others; he is declaring that categories of non-Americans of Obama's unilateral choosing have a right to break our laws and be rewarded for it.

That is not prosecutorial discretion. It is a lawless betrayal of the president's constitutional duty to execute the laws faithfully.

- Andrew C. McCarthy is a policy fellow at the National Review Institute. 

grandmab125
by Ruby Member on Nov. 24, 2014 at 7:53 PM
2 moms liked this

BUMP!

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