President Obama’s use of “prosecutorial discretion” to provide amnesty to nearly 5 million illegal aliens is wrong because, unlike pervious such orders by presidents, it defies the clear will of Congress. It is legalization where legalization is not permitted. And it perverts the use of prosecutorial discretion, which is intended to husband limited resources available for prosecution, not create new policy.
But it also, as Andrew McCarthy points out in National Review, isn’t actually prosecutorial discretion. And so the whole thing falls apart.
Because Obama is not just deciding not to prosecute people who have broken the law. He is giving them legal status that includes the right to work, the provision of Social Security cards, and even driver’s licenses. That is, he is saying that in fact they are not lawbreakers. This is a step further, which involves actually changing the law. No prosecutor can do this using prosecutorial discretion.
Obama is saying that, because the United States won’t prosecute you, therefore what you have done is legal, and you can benefit from it. That’s not prosecutorial discretion. That’s lawmaking.
McCarthy provides some examples:
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.
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.
This is the most obvious reason that what Obama has done is illegal. It is an abuse of the powers of his office, which include prosecutorial discretion. And it should be grounds for several possible responses by Republicans, from a lawsuit to impeachment.