Abuse of "Enforcement Discretion"

Conn analyzed the official White House talking points on President Obama's executive action on immigration late last week, and found them wanting.  Setting aside the subject of immigration (although if Obama's DACA order fueled the unaccompanied minor crisis, how can its impact will this massive new de facto 'amnesty-with-papers' have in terms of incentivizing illegal immigration?), the core of opponents' opposition to the plan deals with the separation of powers and executive excess.  The president's defenders argue that (a)Congress has failed to act for too long, (b)that many other presidents have taken some form of unilateral action on immigration in the past, and (c) that the executive branch exercising enforcement discretion is hardly a new phenomenon and is, in fact, that federal branch's appropriate role.  The first point is an illegitimate non sequitur. Frustration with Congress' inaction doesn't give any president license to effectively legislate via executive decree.  The second point has been rebutted in several trenchant columns, focusing primarily on the scope and context of previous actions.  And former federal prosecutor Andy McCarthy is out with a sharp piece explaining why this executive amnesty is a fundamental perversion of the executive branch's legitimate enforcement authority:

Prosecutorial discretion is a simple and, until recently, an uncontroversial matter of resource allocation. It merely holds that violations of law are abundant but law-enforcement resources are finite; therefore, we must target the resources at the most serious crimes, which of necessity means many infractions will go unaddressed...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. 

Obama's problems on this front are undoubtedly compounded by his own myriad assertions that he could not legally do exactly what he's now done.  We once again offer this video compilation as a strong illustration of this point.  Even former Obama spokesman Jay Carney is conceding that perhaps the president wishes he could take some of his previous words back, noting that Obama is invoking an executive specific power he'd "literally" ruled out as illegal in the recent past:


The Saturday Night Live sketch Sarah posted last evening not only highlighted the Constitutional concerns over the president's decision, it also made reference to the explicitly political element of all of this: 

Child: Wait a second, don't you have to go through Congress at some point?

Executive Order: Aw, that's adorable! You still think that's how government works? (Laughs).

Bill: Don't listen to him, son. Look at the Midterm elections, people clearly don't want this…

Obama: (Throws bill down steps)

The president -- who now decries immigration politics -- delayed this decision until after the elections in an attempt to save vulnerable Democrats, most of whom were wiped out anyway. Now that the people have clearly spoken, Obama is stretching his legal authority to advance his rejected agenda anyway.