Another change in prosecutorial "priorities" in the offing?
Recently installed Homeland Security Secretary Jeh Johnson is proving to be just as adept as his predecessor was at blindingly carrying out the destructive, lawless policies of the Obama administration.
This week the AP reported that Secretary Johnson’s been considering changing the “priority list” at DHS’s immigration enforcement branch by giving amnesty to illegal aliens who have not committed “serious crimes.” It wasn’t specified what qualifies as “serious,” but those given a pass apparently would include illegal aliens who have re-entered the US after being deported before (currently a felony under federal law) as well as fugitives from immigration proceedings – A report also out this week from the Center for Immigration Studies says this latter group alone could number in the hundreds of thousands.
This proposal to unilaterally change how immigration law is enforced comes after the Schumer-Rubio bill stalled in the House and mirrors the original Congress-defying amnesty Obama implemented in the lead up to the 2012 elections. It also shows that the new era of lawlessness we find ourselves in is apparently here to stay.
As the AP writes, “adjusting the department’s priorities for deportation” has become a new approach for this Administration. This is a reference to DHS’s newfound use of “prosecutorial discretion”, a tool manipulated by the Obama Administration to “adjust” our immigration laws in order to expand the number of future Democratic constituents. As Stanford law professor John Yoo writes, "using 'prosecutorial discretion' not to enforce statutes with which the President disagrees" has become his "preferred tool for domestic policy."
In the immigration context, "prosecutorial discretion" has been used as weapon to weaken border and interior enforcement. For this, in part, we can thank the Republican leadership's almost total lack of opposition to Obama’s amnesty plans.
Notwithstanding that a judge recently called Obama’s 2012 administrative amnesty unconstitutional and illegal, anyone willing to look up the history of "prosecutorial discretion" will see just how cynical this administration is when it says it’s in the clear to retroactively "adjust" our immigration laws.
"Prosecutorial discretion," or "deferred action" as it’s also known, is the general ability of any law enforcement agency to decline to arrest someone for minor infractions, such as jaywalking in the case of the police. Importantly, it’s not a policy entrenched in law; it’s an administrative directive or tool that’s meant to be applied, not broadly, but in minor and highly particular cases. For instance, in 1972, it was applied for the first time to John Lennon after his long struggle against deportation ordered by the Nixon administration. Later in the early eighties, the INS would grant deferred action to a select-few US citizen widows and widowers who were facing deportation.
In 2011, Jessica Vaughn from the Center for Immigration Studies in D.C., gave testimony before the House Judiciary Subcommittee on Immigration Policy and Enforcement, where she called "prosecutorial discretion" an “extraordinary tool” that due to its “lack of statutory guidelines makes it especially susceptible to abuse.”
One year after Ms. Vaughn’s testimony and soon after the DREAM Act was rejected by Congress for the 24th time, Obama placated the open-borders lobby by telling DHS to apply "prosecutorial discretion" on a mass scale. In June 2012, he issued an Executive Order telling enforcement officials to stop arrests of illegal aliens under 30 and those who had arrived before they were adults, a group estimated to number around 800,000 and later adjusted upwards to 1.4 million.
We know for a fact that our ex-law professor president understood that "prosecutorial discretion" had never before been applied on such a mass scale and that his Executive Order was way out-of-bounds legally. Immediately after the DREAM Act failed in 2011, Obama told a group of “immigration rights” activists that “[w]ith respect to the notion that I can just suspend deportations through executive order, that's just not the case… there are laws on the books that Congress has passed.” Of course, considering he’s done everything possible to weaken border enforcement, attacks state and local governments when they try to enforce federal law on their own, and lets holier-than-thou "sanctuary" cities ignore federal mandates to detain illegals, this really shouldn’t surprise.
In another critical law journal article about Obama’s illegal amnesty, Professor Yoo asked, “[I]f a president can refuse to enforce a federal law against a class of 800,000 to 1.76 million, what discernible limits are there to prosecutorial discretion?” As we’ve seen with Secretary Johnson’s latest proposal, if our representatives fail to check the president, the limits to such lawlessness are unbound.
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