Fox: Is Obama “Breaking His Constitutional Duty” By Invoking Prosecutorial Discretion In Some Immigration Cases?

Fox “Straight News” Anchor Jarrett: “Isn't The President Duty-Bound By The Constitution” To Deport All Undocumented Immigrants Rather Than Telling Agencies How To Use Prosecutorial Discretion? From the August 19 edition of Fox News' Studio B, guest-hosted by supposed “straight news” anchor Gregg Jarrett:

JARRETT: Continuing coverage now of those big changes to our nation's deportation policy. Thousands of illegal immigrants may now get to stay in the country. The Obama administration announced it will now focus only on deporting only criminals or illegal immigrants who pose a threat to public safety. Critics say we need to enforce the existing immigration laws no matter what. Let's take this now to our legal panel. Defense attorney and Fox News contributor Tamara Holder joins us now. Prosecutor Anna-Sigga Nicolazzi joins us. Thank you both for being here. Anna, let me start with you. The current law states that if you're here illegally, you must be deported. But the president, of course, now saying that he's not going to deport non-criminal illegals. Question is, can he do that? And for the answer, let's begin with the Constitution. We'll put it up on the screen. Here it is, Article 2, Section 3: “The president shall take care that the laws be faithfully executed.” Now you'll notice that's not discretionary. It's mandatory. Isn't the president duty-bound by the Constitution to enforce the laws duly enacted by Congress?

ANNA-SIGGA NICOLAZZI [attorney]: And that's the exact question. You know, people keep going back and forth -- is this or is this not sensible policy? But really we have to look at: Is it the law? And it's not the law. As prosecutors we are charged with the enforcement of our laws whether we agree with them or not. You know, you look at the cases of drug laws. There's lots of people on both sides of that issue, but as long as the drug laws are in place as they are today we as prosecutors must make sure that we go forward with those laws. And here you are taking an incredible number of people as part of the illegal immigrant question and saying that we don't think that that rises to the level of what we are going to go after. And that just really is a problem when Congress has set the laws that are in place and the way to go about changing that policy is to go back to Congress and do it there.

JARRETT: Tamara, if the president refuses to enforce the existing law, which was passed by Congress, is he usurping the legislative authority of Congress, which has the exclusive power, as you know, to make all laws?

TAMARA HOLDER [Fox News legal analyst]: Well, I think that the issues is: How are these people being detained, and what is the reason for it? This law mirrors Arizona's Jan Brewer's law. It basically says that anybody --

JARRETT: But my question is: Is he breaking his Constitutional duty?

HOLDER: No.

JARRETT: He has sworn to uphold and execute and enforce all existing laws.

HOLDER: Right, however, he is not doing it by himself. He has prosecutors who are in the courtroom who have prosecutorial discretion. Just like your prosecutor just said, not all cases are prosecuted for drugs. A prosecutor can look at a case and say: “You know what? This isn't worth it. It's not worth the time and the money.”

JARRETT: But Tamara, Tamara, wait a minute. I've got to stop you there --

HOLDER: It's not worth the time and the money to prosecute someone for misdemeanor trespass.

JARRETT: Isn't he essentially telling them: “Don't deport the people who are non-violent criminals, people who don't pose a threat to national security”? He is telling them how to exercise their discretion. It's not theirs.

HOLDER: No, he is giving them a case-by-case basis to look at each individual person and say: “Should we or should we not deport these people?” Now look, it -- laws have to make sense. Policies have to make sense. Are we just go and throw the fishnet out and deport everybody? The 11 million people who are here illegally? It does not make sense, and the Republicans who are saying that we should stop spending need to look at this. It is a huge expense.

JARRETT: You know, Anna Sigga, there was another president, Andrew Johnson, who was impeached for a very similar reason. He refused to enforce the Tenure in Office Act and he was accused of high crimes and misdemeanors, usurping the authority of Congress. And even this president has admitted that he didn't have the authority to do this, because here is what he said about a month ago. Let's put it up on the screen. He said this to the National Council at La Raza: “I know some people want me to bypass Congress and change the laws on my own. But that is not how our system works.” What do you think?

NICOLAZZI: I think he's in really murky water here. You know, and the difference with what Tamara was saying is that this isn't a case-by-case basis when there is a policy that is being put out there in place. It is one thing when in a particular case that a prosecution -- a prosecutor can and sometimes should use our discretion, but here there is a policy basically telling them from here on forward don't go after these certain individuals and let's look at this entire class of people now even though that's case-by-case to maybe get rid of that and not deport them. And that is the problem when this just went to Congress. This is an issue that is hot on both sides and it is for them to make that decision.

HOLDER: Just like there are policies -- just like there are policies in state's attorneys offices across the country that specifically say if somebody's picked up for a small amount of misdemeanor marijuana, you know, look at the case, and is it worth prosecuting the person or throwing them out -- the case out? This is the same exact thing. We cannot be deporting every single solitary person that we pick up who isn't even a criminal. Who is not even a criminal.

JARRETT: Alright, that's going to end our discussion. [Fox News, Studio B, 8/19/11]

Prosecutorial Discretion Is Well-Established In U.S. Law

Supreme Court: “An Agency's Decision Not To Prosecute Or Enforce ... Is A Decision Generally Committed To An Agency's Absolute Discretion.” From the Supreme Court's decision in the 1985 case of Heckler v. Chaney, written by then-Associate Justice William Rehnquist:

This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See United States v. Batchelder, 442 U. S. 114, 442 U. S. 123-124 (1979); United States v. Nixon, 418 U. S. 683, 418 U. S. 693 (1974); Vaca v. Sipes, 386 U. S. 171, 386 U. S. 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. [Heckler v. Chaney, 3/20/85]

Justice Scalia: “Prosecutorial Discretion” Is “A Special Province Of The Executive.” From Justice Antonin Scalia's majority decision in Reno v. American-Arab Anti-Discrimination Committee:

Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive -- its prosecutorial discretion -- we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce “clear evidence” displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U.S. 456, 463 - 465 (1996). We have said:

“This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.” Wayte v. United States, 470 U.S. 598, 607-608 (1985). [Reno v. American-Arab Anti-Discrimination Committee, 2/24/99]

2005 ICE Memo: It Is Important To Exercise Prosecutorial Discretion In Deportation Cases To Determine Whether The Cases Are “Truly Worth Litigating.” From a 2005 memorandum from William J. Howard, the principal legal advisor for the U.S. Department of Immigration and Customs Enforcement (ICE), on the subject of “prosecutorial discretion”:

[The Office of the Principal Legal Advisor] is handling about 300,000 cases in the immigration courts, 42,000 appeals before the Board of Immigration Appeals (BIA or Board), and 12,000 motions to reopen each year.

[...]

In the overall scheme of litigating the removal of aliens at both the administrative and federal court level, litigation that often takes years to complete, it is important that we all apply sound principles of prosecutorial discretion, uniformly throughout our offices and in all of our cases, to ensure that the cases we litigate on behalf of the United States, whether at the administrative level or in the federal courts, are truly worth litigating. [U.S. Immigrations and Customs Enforcement, 10/24/05]

Bush Administration Invoked Prosecutorial Discretion To Stop Deportations Of Certain Categories Of Immigrants

2005 ICE Memo: If An Immigrant “Is An Immediate Relative Of A Military Service Member, A Favorable Exercise Of Discretion ... Should Be A Prime Consideration.” Contrary to the claims by Jarrett and his guest Nicolazzi that it was not a normal use of prosecutorial discretion to describe categories of offenders who should not be pursued, the Bush administration described several categories of immigrants who should benefit from exercises of prosecutorial discretion. From Howard's 2005 memo on “prosecutorial discretion”:

Immediate Relative of Service Person- If an alien is an immediate relative of a military service member, a favorable exercise of discretion, including not issuing [a Notice To Appear], should be a prime consideration. Military service includes current or former members of the Armed Forces, including: the United States Army, Air Force, Navy, Marine Corps, Coast Guard, or National Guard, as well as service in the Philippine Scouts. [Office of the Principal Legal Advisor] counsel should analyze possible eligibility for citizenship under sections 328 and 329. [U.S. Immigrations and Customs Enforcement, 10/24/05]

2004 ICE Memo: If An Immigrant Was A Member Of The Armed Services, ICE Officials Should Consider The Immigrant's “Overall Criminal History” In Determining Whether To Deport. From a 2004 ICE memorandum outlining procedures for deciding whether to being deportation proceedings against an undocumented immigrant who has been a member of the U.S. armed services:

In cases involving military service where the alien is not eligible for naturalization under sections 328 or 329 of the [Immigration and Naturalization Act], the issuing official should consider the alien's overall criminal history, as well as any evidence of rehabilitation, family and financial ties to the United States, employment history, health, community service, specifics of military service, and other relevant factors. When looking at military service, an ICE official should consider factors related to that service, such as duty status (active or reserve), assignment to a war zone, number of years of service, and decorations awarded. Additionally, when analyzing the criminal history in the case, crimes involving violence, aggravated felonies, drug trafficking, or crimes against children are to viewed as a threat to public safety and normally the positive factors of any military service will not deter the issurance of an NTA. An honorable discharge by no means serves to bar an alien from being placed in removal proceedings. [U.S. Immigration and Customs Enforcement, 6/21/04, via National Immigration Project]

2007 ICE Memo “Highlight[s] The Importance Of Exercising Prosecutorial Discretion When Making Administrative Arrest And Custody Determinations For ... Nursing Mothers.” From a 2007 memo by Julie Myers, Assistant Secretary of Homeland Security for ICE:

This memorandum serves to highlight the importance of exercising prosecutorial discretion when making administrative arrest and custody determinations for aliens who are nursing mothers. The commitment by ICE to facilitate an end to the “catch and release” procedure for illegal aliens does not diminish the responsibility of ICE agents and officers to use discretion in identifying and responding to meritorious health related cases and caregiver issues. [U.S. Immigration and Customs Enforcement, 11/7/07, via the Law Offices of Carl Shusterman]