The topic is immigration. The question is highly political. And yet, what comes of it may well prove critical to criminal law at its most mundane. From the New York Times Room for Debate:
Frustrated by congressional inaction on immigration, President Obama is said to be considering executive orders to protect up to 5 million unauthorized immigrants from deportation, including parents of children who are citizens or legal residents and even more undocumented immigrants who came to the United States as children.
But does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?
Before we go any farther, keep your opinions about immigrants, pro or con, to yourself. Just because the Times says this is about immigration doesn’t make it so. Rather, the fact that the issue arises in the context of immigration, because it’s not like the president, who, according to Attorney General Holder, strongly believes that crack cocaine should be sentenced on a one to one basis with powdered cocaine, would be capable of using the same argument to accomplish that goal.
This is about the line drawn in the exercise of prosecutorial discretion as a matter of executive policy. This is a line that matters in criminal law, and if it can be drawn here, it can be drawn elsewhere. This is a line that, once drawn, cannot be denied later as available for any other exercise of prosecutorial discretion.
For context only, the background to the debate is that Congress has enacted laws relating to immigration that would, if exercised to their fullest, require the deportation of about ten million people. However, Congress has only allocated funds to deport about 4%, or 400,000 of the potential deportees.
The president’s position, using the justification of prosecutorial discretion, is that he has the constitutional authority to allocate resources, the funding for the 4%, as a matter of policy such that he can exempt between 5 to 6 million people, regardless of whether you prefer to call them undocumented aliens or illegals, from deportation. This has happened, de facto, before, most notably with President Bush, but this is the first time it has been formalized as a matter of executive policy.
But just because the president can’t deport everyone, doesn’t mean he can choose to protect millions. Executive discretion cannot be unfettered, and along the continuum from complete enforcement to nonenforcement, the presumption of unconstitutionality increases. As nonenforcement of the law leans toward thwarting Congress’s statutes, rather than merely conserving resources, prosecutorial discretion turns into an abuse of power.
Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.
Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts.
The lines over the line are well drawn. Posner sums up the real issue at stake:
If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.
While Josh’s position, that at some point we cross the line from prosecutorial discretion into abuse of authority and dereliction of duty, is well taken, he doesn’t offer any argument as to where, and why, that line should be drawn. As Josh notes, there is a “continuum” between individualized prosecutorial discretion and sweeping abrogation of laws duly enacted by Congress. Is there a point beyond which constitutional discretion becomes unconstitutional abuse?
Elizabeth Price Foley, a prawf at Florida International University law school, brings the question back to criminal law:
But would it be prosecutorial discretion if the president instructed U.S. attorneys to prosecute only heroin cases, and ignore other drugs prohibited by federal law, such as cocaine, P.C.P. or methamphetamine? What if the president instructed U.S. attorneys not to prosecute any drug case where the arrestee was under age 31, had no felony convictions and was a high school graduate?
Or marijuana, in states that have legalized the use, whether medicinal or recreational? And what of the flip side, where by executive policy, the Attorney General informed his minions that in the exercise of their prosecutorial discretion, they were not bound by the canons of ethics? How about the exercise of discretion where it involves a policy to not seek the death penalty for any person who has an IQ below 80, or better yet, not at all?
As Posner notes, the question isn’t whether there should be a line beyond which the executive cannot cross, but that no court has, as yet, drawn such a line. He’s probably correct that it’s a matter of the issue never having been so contentious before, though Josh notes that it would be problematic as no one would ever have standing to raise the claim.
There is a huge void where this controversy falls, which is largely conceded by both sides of the debate. The question thus becomes which side has the burden of proving the constitutionality or lack thereof, and how would we be capable of determining whether that side was right.
But if this sweeping exercise of prosecutorial discretion is constitutional, the ramifications for many of the outrageous failures of the criminal justice system suddenly shift. The executive can fix them, by mere fiat, based on prosecutorial discretion. And if the executive says one thing and does another, then he has no excuse.