One of the claims that the left is erroneously using to justify Obama’s new amnesty policy is that he has the “prosecutorial discretion” to do what he is doing and on Thursday Fox News’ Dana Perino agreed with the left that Obama does, indeed, have that power.
Perino appeared on the November 20 edition of Fox News’ The Five where she insisted that Obama does have the power to issue his amnesty. But she also noted that it was “strange” that the first major thing that Obama did after the elections was to “poison the well” with his amnesty policy even after he claimed that the midterms meant that voters want Democrats and Republicans to work together.
Perino went on to claim that Obama has neatly boxed in his Republican opponents because they will not be able to quickly settle the constitutional legality of Obama’s order nor will they be able to easily tell five million suddenly legal immigrants that they actually aren’t legal.
Few conservatives, though, agree with Perino that Obama has the “prosecutorial discretion” to simply declare that millions of illegals are legal. One of those saying that Obama does not have this authority is Andrew C. McCarthy, the former Bush era Assistant United States Attorney for New York. McCarthy says that Obama is blatantly “distorting the doctrine.”
On Thursday, McCarthy wrote that, “prosecutorial discretion is a simple and, until recently, an uncontroversial matter of resource allocation. It merely holds that violations of law are abundant but law-enforcement resources are finite; therefore, we must target the resources at the most serious crimes, which of necessity means many infractions will go unaddressed.” (McCarthy’s emphasis)
In other words, such discretion does not suddenly reverse law and make certain crimes legal. It merely holds that prosecutors might choose not to prosecute them because they don’t have enough resources to do so.
In contrast, McCarthy notes, Obama’s new amnesty policy doesn’t just re-allocate resources, it reverses law declaring illegal immigrants to be legal.
In McCarthy’s view, then, Perino is wholly wrong to say that Obama is properly evoking prosecutorial discretion.
Still, Perino is probably right that the Republicans are in a tough spot. How will they beat back Obama’s offer of legality to millions without seeming to be mean spirited? Further, how will they stop the President after he already made the announcement? It will be an interesting few months as we all learn the answer to these questions.
But it is sure Perino is wrong on point, or doesn’t understand what prosecutorial discretion even means.
I might be an outlier on this. I think Republicans are really boxed in… Because I don’t think that we’ll have the answer to the constitutional question for years. At this point the president I think has the prosecutorial discretion to do what he is doing. I think they’ll figure out a way, the lawyers, to give him some cover on that. And besides, by the time it gets to the courts, then, who’s going to be the person that stands up and says they’re going to take away this from the five [million]?
And also when President Obama came out the day after the election he said that the real lesson from the midterm election was that Washington must work together. From a political standpoint I agree it is a strange way to react when your first action is to do something that is absolutely poisoning the well to get a lot of other good things done. What I do think that Republicans will do is to keep their heads–OK there’s a lot of other legislation that needs to get done from the jobs perspective. Jobs, jobs, jobs.
I don’t understand why the administration is not just going ahead and doing the twelve million? Because once you do five, why don’t you just do twelve? Because then what’s the question, what’s humane and what is fair. And so maybe they’ll figure out a way to do an end run around that, but I do think that the Republicans–you cannot stop the President from doing this.