Obama Twists Principle to Ignore Immigration Law

Published on June 21st, 2014

The main excuse the Obama Administration uses for its significant refusal to enforce immigration laws is the legal doctrine of prosecutorial discretion. As Rep. Bob Goodlatte (R-VA), chairman of the House Judicial Committee, recently stated, “The Obama Administration has taken unprecedented, and most likely unconstitutional, steps in order to shut down the enforcement of our immigration laws for millions of unlawful and criminal aliens not considered high enough ‘priorities.’…DHS [Department of Homeland Security] does this under the guise of ‘prosecutorial discretion.’‘’

Goodlatte made his statement at an oversight hearing of the DHS. He and other congressmen were seeking an explanation for what the administration is doing from DHS Secretary Jeh Johnson.

Just what is prosecutorial discretion? Basically it is a principle which allows government to set priorities of law enforcement. As an example, a police agency may decide to focus more on heroin pushers, rather than sellers of less harmful drugs, such as marijuana. The common justification for setting such priorities is that an agency generally lacks the resources to pursue all violations equally.

With illegal aliens, the administration claims that immigration authorities don’t have sufficient staff and funding to go after most of the nearly 12 million people who are in the country illegally. Thus the administration claims the need to focus primarily on capturing and deporting illegal aliens who, in addition to violating immigration laws, have committed other crimes it deems more serious.

These assertions are far from convincing. The administration has lacked resources to conduct enforcement more thoroughly because it has never requested those resources. Most telling, when states passed laws offering assistance to federal enforcement, the administration refused these offers, and sued the states to overturn those laws.

Despite its alleged focus on criminals, the administration has significantly failed even in this area – quite often by choice. As Congressman Goodlatte noted, between October 2008 and July 2011, DHS declined to remove 160,000 illegal aliens arrested by state and local officers for various crimes. Last year, he added, DHS released 36,000 convicted criminals who were being processed for deportation.

These points aside, the administration’s interpretation of prosecutorial discretion is highly flawed. Among his steps, president Obama has unilaterally extended the offer of legal status and work permits to illegal aliens in the DREAM Act category. This goes far beyond the boundaries of simply setting priorities. To return to the drug analogy, what Obama is doing is the equivalent of government saying: Not only will we not focus on arresting pot users, we also will allow them to apply to use the drug legally and issue them permits to grow and sell it.

The latter steps amount to a legalization of marijuana, a decision which properly belongs to the legislative, or lawmaking branch of government. Obama’s action on behalf of the “Dream” aliens is outside the authority of his executive branch. This is what prompted Congressman’s Goodlatte’s statement that the administration has “most likely” violated the Constitution.

In an effort to gain some idea of the administration’s legal thinking, Congressman Trey Gowdy (R-SC) asked Jeh Johnson at the oversight hearing if there were “any” limits on what the administration might try to do with prosecutorial discretion. Johnson conceded that it did not allow “wholesale abandonment of the law,” but he could not come up with any specific limits.

Thus it appears that the administration will continue to twist the law for the benefit of lawbreakers. Congress needs to assert its proper authority against the executive branch, and do it soon. When the checks and balances of our system cease to function, our constitutional liberties hang in the balance.

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