Prosecutorial Discretion Justification? Twisted and Tortured Logic!

Editor’s Note – Once again Andy McCarthy has nailed the issue – this time on Obama’s upcoming justification for unilateral action on immigration. To put it simply, prosecutorial discretion as a basis for Obama’s upcoming action is tortured and twisted logic.

On at least 25 occasions, Obama has been recorded telling an audience that he is not king and cannot do what he is now about to do. But alas, even the king can be wrong, all hail the King, for only he can change his mind at a whim and so too history and declare any edict as he pleases because he so much wiser than we the people.

A most arrogant, petulant, and infantile king he may be, but his royal highness is not pleased with how his subjects acted recently and he must strike back with an edict.

In a time when video is a daily thing for everyone and smart phones capture history so easily, don’t be fooled by your lying eyes and ears. That applies to anyone in his government including his paid advisors – after all dude, those videos were so last term, so old!

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

Obama’s planned action perverts the meaning of the legal doctrine.

By Andrew C. McCarthy

Can the president make fraud and theft legal? How about assault? Cocaine use? Perjury?

Andrew C. McCarthy
Andrew C. McCarthy

You’d have to conclude he can — and that we have supplanted the Constitution with a monarchy — if you buy President Obama’s warped notion of prosecutorial discretion.

Tonight, Mr. Obama will unveil his executive order granting amnesty to millions of illegal aliens. According to news accounts, the criminal-law doctrine of prosecutorial discretion is the foundation of the president’s legal theory. It is the source of what he purports to be his authority to decree that these aliens have lawful status, a power our Constitution gives only to Congress.

Obama is distorting the doctrine.

As I explain in Faithless Execution (and in columns and posts here, here, and here), 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.

I’ve highlighted the last part because it is the key to understanding how Obama’s amnesty perverts the doctrine.

As is always the case with a well-constructed fraud, Obama’s amnesty has some cosmetic appeal because it derives from some indisputable claims. In the American system, the power to prosecute belongs solely to the executive. Consequently, it is for the president alone to prioritize which law violations will be prosecuted and which will go unaddressed. Congress writes the laws but it has no power to compel the president to enforce them. And immigration offenses, like other law violations, are more plentiful than the police and prosecutorial resources available to carry out investigations, arrests, trials, imprisonment, and deportations.

So President Obama is entirely correct when he says prosecutorial discretion makes it perfectly lawful for him to target finite immigration-enforcement resources against illegal aliens who commit serious crimes while overlooking millions of illegal aliens who violate “only” the immigration laws (plus identity-fraud offenses typically committed as those aliens illegally stay and work here).whenyoureking

Obama, like all presidents before him, has that power. This may be infuriating to those who would like to see the crisis of illegal immigration tackled more energetically. That, however, is a policy dispute; a president is not lawless just because one disagrees with him on policy. If that was all there were to Obama’s order, it would be unremarkable.

But it is not unremarkable. Some simple examples illustrate the difference.

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.

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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. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

Judiciary Committee Hearing on 'Failure to Execute the Laws'

UPDATE – As of 5PM Eastern, the House Judiciary Committee video is now view-able. Testimony begins at approximately minute 37. We have now embedded the video below.

Editor’s Note – Constitutional Crisis? Egregious erosion of the balance of power? Failure of the Judiciary to secure the balance? Failure to faithfully execute the laws? Why is the term ‘elastic power’ so important? What about the ‘guilt in the legal flaw of standing silent?’ Is there ‘Congressional despair because of the political interests’ of the President?

On Wednesday, February 27th, the House Judiciary Committee held a hearing on the subject of Executive Branch usurpation of power and what many believe is a failure of the President and his administration to live up to their oath under the Constitution where they accepted the duty to faithfully execute the laws of the land. Professor Turley had one very important statement: “We will all loathe the day we remained silent on the shift of power.”

Did you see it? Can you see it now? Why not? It may be the most important hearing held in decades – all need to watch. It was a civics lesson extraordinaire! Rep. Trey Gowdy (R-SC) and others really probed the waters deeply in a very legal manner that was also very non-politically slanted. But where were the Democrats? Sheila Jackson Leigh did show up, only long enough to rail that the Republicans were using such terms, and John Conyers was there as well, but…you be the judge.

The hearing was chaired by Rep. Bob Goodlatte (R-VA) with two panels of experts testifying and answering questions. Many of us caught parts of the almost three hour hearing and were riveted by the testimony. What was obvious from the outset was that many Democrats on the Committee did not even show up for this most important discussion about the law, the balance of powers, judicial standing, and how Americans, through their representatives can redress their grievances.

After the hearing, our staff went to the CSpan web site to download the entire video, but sadly, it was not there, nor is it there now. A call to CSpan was completely unproductive and the representative who spoke with us was not even aware that it had occurred. Incidentally, that representative hung up on us despite our very passive demeanor, we just wanted help in locating it.

We then went to the House Judiciary Committee web site and tried to view what they posted. It was there, but when we hit the play arrow, nothing happened.

Several of us, on different browsers, could not get it to work so we called them as well. The person who tried to help us successfully got the video to play on his end, but we still could not. He told us to wait another day; it would likely then be available. [The video is now available below]

Our question is hence, what does CSpan actually do, and why was the representative so callous and unhelpful to the point of hanging up on us? Secondly, why is something so very important, so hard to get to, especially when it was in direct aid by the media to get the content to the public?

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What we do have is a very large Constitutional Crisis underway, and so few are paying attention. We saw some out takes on Fox News, but crickets were heard elsewhere, and we could not get access for some unknown reason. This has never been an issue in the past for our researchers.

Fortunately, others were watching and a great synopsis is posted here from the Washington Free Beacon. If you click on this link over the next day or so, maybe the House Judiciary Committee video will actually play. In the meantime, we also direct you to the opening remarks of Prof. Jonathan Turley here. It is long, both the video and the remarks, but all Americans need to pay very close attention to this crisis now.

‘The Imperial Presidency’

House holds hearing on executive overreach

BY:  – Washington Free Beacon

Members of Congress and constitutional law experts testified before the House Judiciary Committee on Wednesday, warning that the legislative branch is in danger of ceding its power in the face of an “imperial presidency.”

The hearing, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws,” focused on the multiple areas President Barack Obama has bypassed Congress, ranging from healthcare and immigration to marriage and welfare rules.

Chairman of the House Judiciary Committee is animated in his opening remarks at the hearing on enforcing the President's duty to faithfully execute the laws on Weds., Feb., 26, 2014.
Chairman of the House Judiciary Committee is animated in his opening remarks at the hearing on enforcing the President’s duty to faithfully execute the laws on Weds., Feb., 26, 2014.

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, testified that the expansion of executive power is happening so fast that America is at a “constitutional tipping point.”

“My view [is] that the president, has in fact, exceeded his authority in a way that is creating a destabilizing influence in a three branch system,” he said. “I want to emphasize, of course, this problem didn’t begin with President Obama, I was critical of his predecessor President Bush as well, but the rate at which executive power has been concentrated in our system is accelerating. And frankly, I am very alarmed by the implications of that aggregation of power.”

“What also alarms me, however, is that the two other branches appear not just simply passive, but inert in the face of this concentration of authority,” Turley said.

While Turley agrees with many of Obama’s policy positions, he steadfastly opposes the method he goes about enforcing them.

“The fact that I happen to think the president is right on many of these policies does not alter the fact that I believe the means he is doing [it] is wrong, and that this can be a dangerous change in our system,” he said. “And our system is changing in a very fundamental way. And it’s changing without a whimper of regret or opposition.”

Elizabeth Price Foley, a law professor at Florida International University College of Law, agreed, warning that Congress is in danger of becoming “superfluous.”

“Situations like this, these benevolent suspensions as they get more and more frequent and more and more aggressive, they’re eroding our citizens’ respect for the rule of law,” she said. “We are a country of law and not men. It’s going to render Congress superfluous.”

TurleyFoley said Congress is not able to tackle meaningful legislation out of fear that Obama would “simply benevolently suspend portions of the law he doesn’t like.”

“If you want to stay relevant as an institution, I would suggest that you not stand idly by and let the president take your power away,” she said.

Panelists and members of Congress dismissed the idea of impeachment, and instead focused on lawsuits to challenge the constitutionality of the president’s unilateral moves.

Four House members testified on the first panel during the hearing to highlight legislation they have sponsored to thwart the administration’s executive overreach.

Impeachment would “surely be extremely divisive within the Congress and the nation generally, and would divert the attention of Congress from other important issues of the day,” said Rep. Jim Gerlach (R., Pa.).

Gerlach, who testified before the committee, introduced H.R. 3857, the “Enforce the Take Care Clause Act,” which would expedite the review and injunction process for federal courts to challenge executive actions. Such a challenge would have to pass a supermajority in both chambers in order to be fast-tracked.

“Given the growing number of examples where this President has clearly failed to faithfully execute all laws, I believe it is time for Congress to put in place a procedure for a fast-track, independent review of those executive actions,” he said.

Gerlach said he proposed the bill due to Obama’s repeated alterations to his signature law, the Affordable Care Act.

“The ACA has been revised, altered and effectively rewritten by the president and his administration 23 times since July,” he said.

“When we have these constant changes at the president’s whim think about what that does to businesses’ planning capabilities and hiring capabilities and their expansion capabilities,” Rep. Tom Rice (R., S.C.) said. “We shouldn’t wonder why our economy is struggling.”

Rice has proposed the “Stop This Overreaching Presidency (STOP) Resolution” as a remedy. The resolution, which has 114 cosponsors, would direct the House to file lawsuits against four of the president’s unilateral actions, including the employer mandate delay in Obamacare and deferred action program for illegal immigrants.

Turley said Congress must take action to regain their power as the “thumping heart of our system.”

“The fact is, we’re stuck with each other,” Turley said. “Whether we like it or not in a system of shared powers. For better or worse we may deadlock, we maybe despise each other. The framers foresaw such periods, they lived in such a period.”