Obama’s DREAM of discretion

By Michael Bryan

From the over-heated rhetoric coming from the Right, you might think that Obama had executed a coup using illegal aliens as storm troopers in announcing new prosecutorial priorities in removal procedures (PDF link) in lieu of Congressional action on the DREAM Act.

Here's what some GOP pols here in Arizona are saying about Obama's announcment: 

"… backdoor amesty…" Gov. Brewer

"This is a step toward amnesty." – Maricopa Co. Sheriff Joe Arpaio

"… a politically motivated power grab…" – Sen. McCain

"… granting anmesty to 1 million illegal immigrants… " -Sen. candidate Will Cardon

"… we have a President who flouts the law and is now openly ruling by edict…" – Congressional candidate Jon Paton

"… President Obama is ignoring the Constitution and circumventing Congress…" - Congressional candidate Doug Wade

"Leading is not bypassing Congress." -Congressional candidate Martha McSally

"… Napolitano and President Obama make what was illegal yesterday legal today…" – Pinal Co. Sheriff Paul Babeu

So what terrible thing has President Obama done?

He's directed federal prosecutors and immigration personnel to use their discretion to give lower priority, and formal deferrals, to the removal of people who meet these criteria:

• came to the United States under the age of sixteen; 
• has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum; 
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and 
• is not above the age of thirty.

Prosecutorial discretion is a vitally important tool in law enforcement. No prosecutorial agency, law enforcement agency, or court system has the capacity to devote time and resources to every possible case that could be brought. That is why may cases are declined for prosecution. This is why there is plea bargaining. This is why police have discretion to warn and not cite every violation. This is why courts have wide discretion during the adjudicative process to dismiss cases for a variety of legal reasons. This is how the rule of law actually works.

The authority and discretion to decide how to prioritize the enforcement of laws is vested in the executive branch. It is what executives and prosecutors and eforcement agents do. It is what Obama is doing.

So what is remarkable, or unusual, or objectionable about the President's guidance to those responsible for enforcing immigration laws? Absolutely nothing.

These young people do not represent a threat to public safety. They lack any specific intent to violate the immigration laws: their parents may have intended to violate the law, but these kids didn't. They are contributing to this nation's future in a substantial and demonstrable way. The President's guidance essentially tells prosecutors to pay more attention to the real bad guys who come here to commit crimes, victimize people, and flout our laws, not these kids who are Americans in basically every way except their formal immigration status.

Those who claim that Obama is subverting the rule of law or bypassing Congress should actually read the policy guidance. It specifically states:

"This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here."

Those who are hollering and caterwauling to their anti-immigration, racist base in reaction to the President's policy owe him an apology for their vile imprecations against his motives.