Posted on 05/29/2015 3:17:04 AM PDT by markomalley
A key part of the Fifth Circuit’s decision to keep the freeze on President Obama’s amnesty programs was the 25-page dissenting opinion written by the panel’s lone Obama appointee. Not only does it point to how the bloc-voting liberal justices of the Supreme Court will ultimately treat the case, it almost wholly focuses on the threshold issue of “prosecutorial discretion”: an executive-branch power that, if expanded to include mass grants of amnesty, would remove the last vestige of authority that Congress and the courts have in preventing immigration anarchy at our nation’s southern border.
The “essential point of disagreement” that Judge Stephen Higginson had with Judge Hanen’s lower-court opinion has to do with the characterization of the president’s amnesty programs. How DAPA and DACA are categorized is crucial for both sides. Obama’s attorneys contend that the programs are mere exercises of “prosecutorial discretion” on the part of the president.
The core case that “forecloses plaintiffs’ arguments” against the administration’s use of DAPA and DACA, wrote Judge Higginson, is Heckler v. Chaney, where the Supreme Court held that “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion.” Finding that these programs were something bigger than mere decisions not to prosecute, Judge Hanen determined that the Heckler ruling couldn’t apply to the president’s amnesty. Higginson quotes Hanen’s characterization of DACA and DAPA, emphasizing that he called them “announced programs of non-enforcement of the law that contradicts Congress’s statutory goals” and an “abdication of [the government’s] statutory responsibilities.”
The descriptor “announced” is essential here, and Higginson is right to focus on Hanen’s characterization so intently. “Prosecutorial discretion” refers to the priorities prosecutors sometimes must adopt (almost always in the context of criminal prosecutions) given the operational limits they face. The Department of Homeland Security has appropriated this concept, asserting that by being able to prosecute illegal aliens according to its own discretion, rather than the guidelines set forth in our immigration laws, it can save its “limited resources” and better “prioritize” cases that deserve the most attention — e.g., convicted felons, illegal aliens who are threats to national security, and so on.
But such priorities are not usually “announced” by prosecutors. As liberal law professor (and immigration attorney) Peter Margulies writes, the decision to exercise discretion in dealing with wrongdoers necessarily must be done “in the dark,” not out in the open (as in a nationwide memo). To announce such an intention is to create “moral hazard,” the concept most commonly used to describe the unintended consequences of insurance. As Margulies says, “moral hazard arises because individuals who know they will be held harmless for wrongdoing tend to do more of it” (emphasis added). Letting wrongdoers, such as illegal aliens, apply in advance for a “fixed period of forbearance” (deferred action) would lead to more of the bad behavior in question, such as overstaying a visa or crossing the border without appropriate documents.
Take the case of burglary, says Margulies. If a person charged with burglary is young and his theft was small, a judge may favor a plea bargain instead of sentencing him to prison. But “it would be difficult to imagine,” writes Margulies, “prosecutors would solicit applications from known burglars for a ‘burglars’ holiday’ that would guarantee a specific period of immunity.”
The Immigration Nationality Act (INA) is a deterring statute. Since its original enactment in 1952, it has been continually amended to better deter illegal immigration. By announcing an “illegal aliens’ holiday,” the president created the moral hazard of giving a reprieve to illegal aliens, which has the result of suspending the deterring power of the INA. In a word, then, DAPA and DACA are an “abdication,” and Judge Hanen is absolutely right.
Any discretion that Congress allows for must have a “limiting principle” that narrowly confines the transfer of authority.
Any discretion a president may have had in prosecuting illegal aliens and deferring deportations was taken away by the INA’s IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act) amendments of 1996. Even open-borders pushers like the ACLU agree that the INA as written leads to “mass deportations”: That is the mandate given to DHS. Even Noam Chomsky agrees with this characterization. President Clinton, he says, “militarized” the border in the mid-Nineties in anticipation of the implementation of NAFTA. According to Chomsky, because independent Mexican farmers had no way to compete with subsidized U.S. agribusiness, the “likely consequence would be flight to the United States, joined by those fleeing the countries of Central America.” To say, as Higginson does, that the INA could possibly forgo its deterrence factor and authorize DAPA and DACA takes some serious mental gymnastics.
Any discretion that Congress allows for must have a “limiting principle” that narrowly confines the transfer of authority in question, lest it simply become a runaway power grab. There is no such limitation in DAPA and DACA. Oddly, Judge Higginson inadvertently supports this argument when he claims throughout his dissent that the “Family Fairness” deferred-action program of 1990 provides legal precedent for the president’s amnesty. That program makes DAPA and DACA “neither new nor uncommon,” he says. Higginson, however, fails to discuss the limited applicability of that program.
Family Fairness grew out of the legislative amnesty of 1986, when a small number of the beneficiaries’ dependents (mostly children) were left out because of an oversight. Importantly, those children were able to be sponsored after the beneficiaries became lawful permanent residents. Congress sought to correct this mistake by making provision for this class in the Immigration Act of 1990; in the interim (which lasted several months), members of this class, despite being illegal aliens, had their deportation proceedings stayed. As law professor Josh Blackman says, the program served as a “temporary bridge from one status to another,” with Congress granting the children legal status almost immediately after it was put in place.
Beneficiaries of DAPA and DACA, by contrast, have no prospect of obtaining proper legal status. When another Obama-appointed judge, Beryl Howell of the D.C. District Court, raised Family Fairness as “precedent” in her dismissal of Arizona sheriff Joe Arpaio’s DACA challenge, Margulies said she “failed to acknowledge the distinction between discretion that acted as a bridge to legal status and discretion unmoored to status” (emphasis added). Deferring prosecution for a narrowly defined group of people whose change in status is all but inevitable is the kind of temporary and limited discretion that Congress arguably can give to the president. But deferring prosecution for large groups of people is what makes Obama’s amnesty completely unhinged and a reviewable abdication of duty.
Wholesale dismissal of Federal Law is NOT “prosecutorial discretion”.
It they want “prosecutorial discretion” then federal prosecutors should be forced to review each case individually and be required to file the proper paperwork for each case. Signed and sealed. With names for later action.
If the illegals were even slightly likely to vote for conservatives on some future date Obama would be guarding the border with minefields and machine guns.
more to it than voting, they certainly know how to fix elections, Obamma is after our fall..he does not care about legality..the real question will be , Will the military follow our potus traitor in chief when ordered..
If the military deploys for mashall law we are done..
You’re absolutely right, Gaffer. President Obama isn’t using “prosecutorial discretion.” His administration is completely rewriting the law.
Consider speed limits. The highway patrol has limited resources and may not be able to pursue every speeder. If the highway patrol could catch everyone, prosecutors may not have the resources to prosecute every case. Regardless, everyone who speeds is subject to the same law and can be prosecuted. The president, on the other hand, effectively raises the speed limit, and he does so even though he’s sworn to faithfully execute the laws.
The article’s author also pointed out that if people know the speed laws are effectively raised, it encourages them to speed even more. That opposes the reason for having the speed limit in the first place.
The cities have been handed over to the black mob. Might as well hand the rest of the country over to the brown mob.
In my mind the truly onerous part of this discretion the president is supposed to have is that it contradicts the constitution’s requirement that the president faithfully execute the laws of the land. It says the president can ignore alternative methods of enforcement and simply plead discretion. As we have seen this allows even an uncreative person to rewrite or repurpose entire laws. For example, the Arizona law effort that intentionally mirrored federal law exactly was taken to court because it enforced the law. Obama claimed it was a violation of his discretion to not enforce. This discretion is supposedly based on limited resources and not on a desire not to enforce a law due to some disagreement with the law itself.
A real desire to faithfully execute the law would have welcomed the extra resources of the state of Arizona to fulfill the law as written by Congress. Amazing to me is that scotus said that the president has the power not to enforce even though a means to enforce is available.
In my world “discretion” is for individual events, not wholesale laws. To put the name “discretion” on the face of violating Federal Law is criminal.
Obama has instead put bags over the speed limit signs and ordered police not to enforce any speed limit, under threat of job loss or other official sanction.
That's the exact sentiment of Judge Hanen's extended order. Hat tip to Ray76 for this link.
Was I dreaming, or did we send a boatload of Republicans to Congress last November to put a stop to things like this?
Absolutely unbelievable.
The Boatload is totally focused on trade deals desperately desired by their sponsors to the detriment of the populace.
The issues they ran on are nowhere to be seen or heard from them.
Obama is anxious to destroy this country.
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