Very often a legal question comes down to a decision as to where to draw the line. Is something legal or prohibited? Does something belong to this person or that one? Lawyers and judges are left to interpret cases, statutes, and constitutions and apply them to fact patterns that differ in subtle, often unanticipated ways. The line drawing becomes even more difficult in the field of Constitutional law, as we are trying to apply rules over two centuries old to the actions of politicians skilled at pressing the limits.
Today in the case of Elionardo Juarez-Escobar, the federal district court in Western Pennsylvania became the first to try to draw those lines in considering President Obama’s decision to grant amnesty to certain illegal immigrants. The government had picked up Mr. Juarez-Escobar for violations of the immigration law. The judge seemed to want to address the issue of the constitutionality of executive amnesty, because the judge on his own directed the parties to address the issue of whether Mr. Juarez-Escobar was entitled to amnesty under the program. The government argued that the program did not apply, but that didn’t stop the judge. Having created the issue, the judge then resolved it by finding that the executive amnesty is illegal.
The case presents the issue of where the line is to be drawn between the president’s duty to enforce the law, and the executive branch’s “prosecutorial discretion.” It is taken for granted that prosecutors and law enforcement officers, and by extension the attorney-general and president that supervise them, cannot prosecute every case. So they are considered to have the discretion to refuse to arrest, to dismiss cases, to plea bargain, and to decline to appeal. However, the Constitution also requires the president to “take Care that the Laws be faithfully executed.” On which side of the line falls President Obama’s policy of granting amnesty to certain illegal immigrants, and even giving them documentation to prove their status and obtain benefits?
Some scholars have argued that so long as the president is ordering the executive branch to refrain from taking action in certain situations, then the (non-) action is permitted as part of prosecutorial discretion. In our opinion this draws the line much too far on the prosecutorial discretion side. Could a conservative president unilaterally decide that environmental regulations are too strict and therefore will not be enforced? Could he determine that tax rates are too high and instruct the IRS to collect lower amounts, even creating tax forms that apply his new revised rates?
The judge in the Juarez Escobar case drew the line by saying that when the executive action announces a policy that is not on a case-by-case basis, or creates substantive rights that would be difficult to withdraw later, it is too far from prosecutorial discretion and illegal. Finding that President Obama’s executive amnesty violated both those tests, he declared it unconstitutional. However, because of the unusual way in which the case was presented (no party in this case was seeking an injunction against the President’s program), this decision is not likely to affect the Obama Administration’s actions.
Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.