The WSJ's Editorial Board Gets Prosecutorial Discretion Wrong

WSJ: Prosecutorial Discretion “Cannot Justify A Refusal To Enforce The Law For Entire Classes Of People.” On April 17, the editorial board of the Wall Street Journal slammed President Obama's executive action on immigration by misrepresenting Obama's application of prosecutorial discretion to defer deportation for a limited number of undocumented immigrants who fulfill various requirements. The Journal characterizes prosecutorial discretion as Obama's “refusal to enforce” immigration laws for “entire classes of people”:

Prosecutorial discretion is a vital legal concept. But such forbearance applies to individual prosecutors who make a judgment about the facts and circumstances of a particular case, such as the nature and seriousness of the offense. Discretion cannot justify a refusal to enforce the law for entire classes of people.

Even the Administration concedes in its brief that Mr. Obama created a “blanket policy,” not mere guidance to law enforcement. And a choice not to prosecute doesn’t typically come with a benefits package that includes ObamaCare and the Earned Income Tax Credit.

The Administration claims it can do whatever it pleases on immigration because of the Arizona v. U.S. precedent. In 2012 the High Court overturned a law that allowed state officers to arrest illegals for deportation because it “violates the principle that the removal process is entrusted to the discretion of the federal government.” The feds are supreme on immigration law—but only when Congress passes a statute. The Arizona ruling was not an open-ended grant for the executive branch to rewrite the law, but rather to look at “the equities of an individual case.”

The Texas court ruled, and the Fifth Circuit agreed, that the states have the “standing” to sue because they incur costs as a result of Mr. Obama’s order, such as the financial burden of issuing driver’s licenses to former illegals. But the more consequential damage is to democratic norms.

If Presidents can use “enforcement discretion” to suspend laws, the next one may choose to lower the capital gains rate by informing taxpayers the IRS won’t collect tax-evasion penalties over 15%. Environmental regulations could be ignored through a similar trick. [The Wall Street Journal, 4/17/16]

The WSJ Has Misrepresented Prosecutorial Discretion On Obama's Executive Actions On Immigration For Years

WSJ: Prosecutorial Discretion “Is Supposed To Be Exercised In Individual Cases.” In a November 16, 2014, editorial, the Journal stated that Obama's executive action on immigration were not representative of the legal concept of prosecutorial discretion:

Yet as far as we have seen, Mr. Obama sought no such legal justification in 2012 when he legalized hundreds of thousands of immigrants who were brought to the U.S. illegally as children. The only document we’ve found in justification is a letter from the Secretary of Homeland Security at the time, Janet Napolitano, to law enforcement agencies citing “the exercise of our prosecutorial discretion.” Judging by recent White House leaks, that same flimsy argument will be the basis for legalizing millions more adults.

It’s possible Messrs. Obama and Holder haven’t sought an immigration opinion because they suspect there’s little chance that even a pliant Office of Legal Counsel could find a legal justification. Prosecutorial discretion is a vital legal concept, but it is supposed to be exercised in individual cases, not to justify a refusal to follow the law against entire classes of people. [The Wall Street Journal, 11/16/14]

The WSJ Praised Judge Hanen For Adopting The Myth That Prosecutorial Discretion Does Not Apply For Immigration. In a February 17, 2015 editorial, the Journal applauded federal Judge Andrew Hanen for arguing that "‘deferred action’ is nothing more than routine prosecutorial discretion:"

Last November the Department of Homeland Security published memos instructing immigration enforcers to disregard federal laws that require deportation of the undocumented and place strict limits on who may work in the U.S. The White House and DHS claim this “deferred action” is nothing more than routine prosecutorial discretion, as if the department is merely conceding that its officers cannot hunt down and deport the millions of illegals in the country.

Judge Hanen dismantles that fiction. As he points out, the DHS memos amount to “a massive change in immigration practice” that reorders “the nation’s entire immigration scheme.” Instead of the historical norm of forbearance in individual cases, the memos devote 150 pages to detailing a blanket policy for whole classes of immigrants—meaning that discretion is “virtually extinguished,” as Judge Hanen writes. [The Wall Street Journal, 2/17/15]

Legal Experts Agree Prosecutorial Discretion Is The Principle Behind Obama's Executive Actions On Immigration

Law Professors: The Number Of People Who Might Benefit From Executive Order Doesn't Alter Its Legality. In 2014, leading legal experts on immigration wrote to President Obama explaining the decades-old legal precedent for the executive branch to exercise prosecutorial discretion on the matter of deportations:

Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. Notably, the Reagan-Bush programs of the late 1980s and early 1990s were based on an initial estimated percentage of the unauthorized population (about 40 percent) that is comparable to the initial estimated percentage for the November 20 executive actions. The President could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal issue. For all of these reasons, the President is not “re-writing” the immigration laws, as some of his critics have suggested. He is doing precisely the opposite -- exercising a discretion conferred by the immigration laws and settled general principles of enforcement discretion [Letter to the President of the United States, Executive authority to protect individuals or groups from deportation, 11/25/14]

Former Chief Counsel for USCIS : The Department Of Homeland Security Considers Deportation Deferral On A Case-By-Case Basis. At the January 29, 2015, confirmation hearing of U.S. Attorney General Loretta Lynch, Stephen Legomsky, former chief counsel for the U.S. Citizenship and Immigration Services (USCIS), explained that the Department of Homeland Security immigration memo “says not once, not twice, but over and over again that officers on the ground are instructed to look at the facts of each individual case, to evaluate them on an individualized basis, and specifically, to exercise their discretion.” Legomsky went on to point out that the form that USCIS uses for deferred action applications even “lists the possible reasons for denial and explicitly lists 'exercise of discretion.'” [Media Matters, 1/29/15]