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Prosecutorial Discretion

In Crane v. Napolitano, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged.  The basis of the challenge is that Obama’s order is inconsistent with the governing statute.  The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue.  The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.

Let’s assume that Congress did take away the President’s prosecutorial discretion.  Is that constitutional?  In my opinion, the answer is yes, at least under the Constitution’s original meaning.  First, the President is normally required to follow laws that Congress passes.  Even if the President does not like the law, that does not give him the right to ignore it.  The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution.  Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive.  Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement.

Second, it is important to distinguish cases of criminal prosecution, civil lawsuits, and civil entitlements (like Social Security).  The strongest case historically for allowing prosecutorial discretion involves criminal prosecution.  The executive will often not have the resources to bring all cases and there are a variety of factors that are involved, such as ease of proving guilt and the wrongfulness of the action.  It is not clear how these various factors should be weighed against one another.  In the absence of Congress specifying how to allocate the executive’s limited resources, it is assumed the prosecutor enjoys discretion to take these factors into account and to weigh them.

Third, but what if the Congress attempts to take away this discretion?  To do so, it must make a decision as to how the executive should behave.  One law that was reviewed by the Supreme Court in Dunlop v Bachowski (1975) involved a provision of a labor statute which provided that upon filing of a complaint by a union member, the Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation has occurred, he shall bring a civil action.   This provision, which requires the Secretary to bring actions whenever he believe there is probable cause of a violation, significantly takes away his discretion.  I think that this is constitutional and would be constitutional even if it involved criminal prosecutions.  The reason there has been prosecutorial discretion traditionally is that it makes sense to grant that discretion because it is so hard to adopt a sensible alternative arrangement.  The provision in Dunlop could lead to serious problems if applied more generally.  But that does not mean it is unconstitutional.

Thus, if it turns out that the immigration statute takes away the President’s discretion, then I believe the statute would be constitutional.

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