Prosecutorial Discretion Is STILL Not Amnesty

June 17th, 2012
Follow up to yesterday's post

President Obama didn't issue an "executive order" on immigration. He directed the DHS to exercise existing authority under the law.The reactionary right is still going nuts. Worse, they continue to misrepresent the change in policy.

The Department of Homeland Security, under the guidance of the President, is exercising their right of prosecutorial discretion. Period. Putting aside the fact that the new approach to some 800,000 of the roughly 11 million undocumented immigrants within our borders is simply humane and the right thing to do, it's also the most practical approach fiscally (we addressed that yesterday HERE and HERE).

There is also no question that DHS does have the authority to do this. This is established law under Heckler v. Chaney.

The Immigration Policy Center explains the parameters available under that ruling:

"Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place." EMPHASES MINE

It's cut and dry. I am not alone in this assessment. Greg Sargent spoke to Utah's conservative GOP Attorney General Mark Shurtleff:

"This is clearly within the president’s power," Shurtleff said. "I was pleased when the president announced it."

Shurtleff, a Mitt Romney supporter who is a diehard conservative on many other issues, is perhaps the nation’s most prominent Republicanstaking out an alternative to the GOP’s hard line on immigration. His support for the president's policy represents a larger split within the party, between those who see Arizona as a model for the nation and those who want the party to adjust to demographic (and related political) realities with another approach.

Republicans and conservatives have argued either that Obama did this by executive order or more broadly that ignoring Congress represents dictatorial rule by fiat. But Shurtleff rejected that view, noting that this decision was not made via executive order and that the administration has the discretion to decide whom to prosecute.

"Law enforcement makes decisions based on the resources available to them — until Congress acts, we'll be left with too many people to deport," Shurtleff said. "The administration is saying, `Here's a group wecould be spending our resources going after, but why? They’re Americans, they see themselves as Americans, they love this country.'" EMPHASES MINE

The attempts by congress to deal with this very issue were sabotaged by the GOP through yet another act of filibuster abuse. For all intents and purposes, they forced the hand of enforcement authorities. Someone had to make the hard and practical decisions in the face of that failure. The administration not only did so, they did so legally.