Presidential discretion

Prosecutorial discretion: A definition and discussion

Perils of selective prosecution

The president of the United States, in the context of enforcing various laws passed by Congress and rules and regulations (with the force of law) written by various regulatory agencies of the Executive Branch, has cited “prosecutorial discretion” as the source of his power to basically say: Yes, that is the law, but I don’t like it so I am going to ignore the law and I am going to tell my agents in the executive branch not to enforce it.”

Question: Does prosecutorial discretion really give the president the right to ignore the law?

Where is the justice if the law is selectively enforced? Is it not more fair if the law is applied equally to all citizens, especially the same law?

The problems I have with President Barack Obama’s declaration that segments of his Patient Protection and Affordable Care Act (aka Obamacare or the ACA) will not be enforced because his allies and administration failed to anticipate a host of unintended consequences (well, we are being generous here and assuming they are unintended) that have accompanied the rollout of the President’s signature legislature are legion.

I won’t go into the convoluted definitions and such that make it constitutional, or the cynical calculations that have gone into exempting this class or that group from the dictates of the Congressional legislation that was passed on a strictly party-line vote (i.e. no attempt at consensus). I am just dealing with the perception that this administration likes to favor one political faction over another. In other words, it is all about votes and maintaining political power for a favored few. That is wrong. The government should be bound to apply the law. The president is not king, nor an elected dictator like Caesar.

I know that is an idealistic view for me to take, but unfortunately, even the evil Wikipedia points out that selective prosecutions based on selective prosecutorial discretion is subject to unbelievable abuse.

Wikidpedia on Selective Discretion

“Selective enforcement is the ability that executors of the law (such as police officers or administrative agencies, in some cases) have to select those against whom they want to enforce the law. The use of enforcement discretion in an arbitrary way is referred to as selective enforcement or selective prosecution.

Selective enforcement in practice

Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates the Rule of Law, allowing those in authority to apply justice only when they choose. Aside from this being inherently unjust, this almost inevitably leads to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from whom they desire favors.”

Yes, folks, this violates the basic principles of the U.S. Constitution and particularly the 4th, 5th, 6th, 76h, 8th and 14th Amendments.

Now, all you legal beagles out there can argue the picayune minutia of the ins and outs of  its application, but the concept of equal protection and equality before the law is the bedrock of the American concept of the “rule of law.” Without the protection of the rule of law, then what are we left with?

The President, it seems – whether it is enforcement of immigration law, voter intimidation, or his prized Obamacare law – seems to be saying: It doesn’t matter what the law says. It is what I say that matters.

Unfortunately, in many respects, he is correct. He is the one who is charged with enforcing the law, and his minions have a broad discretion as to how to go about it.

Now, I may not like it. You may not like it. A lot of people may not like it. However, it still may be within his power as the chief enforcer of the provisions of the Constitution, the statutory laws passed by Congress and all the administrative rules and regulations (i.e. laws) put in place by all the various governmental agencies to enforce vague laws passed by Congress, to decide how aggressive he will tell the agents of the government to enforce said legal issues.

In the case of Obamacare, he sounds like the fan of a losing sports team: Wait until next year to see anything done.

Deferring enforcement of unpopular laws, and vowing to veto attempts to repeal said laws, rules and regulations, is a way to try to game the system. I think that is wrong. Congress wrote the mess, it needs to correct it. And it can start by repealing the rules and regulations enacted by the regulatory agencies to enforce it.

Unfortunately, the incompetence of this administration all too often is overwhelmed by the incompetence and ineptitude of the loyal opposition. Maybe that is an expression of how truly our house is divided.

For America is a house divided, these days. There are those who see government as the solution and those who see the government as the problem … and never the twain shall meet.

IF one is to take election results at their face value then the divide is almost straight down the middle, give or take 2 or 3 percent on either side. That is why the White House was gained by a slim majority, the Senate is controlled by one party by a majority that can’t steamroll the opposition and the House is controlled by the loyal (or disloyal, depending on how partisan you want to be) opposition.

What the American people seem to be hungering for are consensus solutions to the problems that we are facing. Unfortunately, that consensus is eluding us because those who are in the position to do so have decided that it is not in their interest to compromise. Pox on all their houses.

Consensus maybe needed but the basis of our republic, our union, is that the rule of law shall prevail and that the citizen can expect that it will be enforced without preference or prejudice. It rarely is, but that is the standard we should demand.

This administration, however, apparently seems to be intent on casting away even the fig leaves used by its immediate predecessor, in its bid to establish an imperial presidency that ignores the rule of law in favor of its own interpretations.

Please, will someone stand up and start yelling that the emperor has no clothes on? Will someone inside the beltway at least try to invoke the checks and balances so carefully weighed by those disparate dead white men of property who designed the American constitutional system? It really is an incredible piece of work that we seem to to want to flush away in fit of 21st Century hubris.

Nuff said … I through ranting now (for the moment)