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)

No Fear tour

No Papers No Fear tour

Ok, it sounds like some music group, but apparently there is a bus-load or so of undocumented immigrants / illegal immigrants / illegal aliens (you take your pick) on a tour of U.S. cities flouting the fact that they have no immigration papers and basically, at least from my impression, are telling American citizens and their government where they can stick their immigration laws and rules.

Once again, folks, does this seem right to you? If it does, I surely would love to have an explanation, because I don’t understand. You see, I have first hand experience with the U.S. immigration system: My wife is, and still is and will be, a Canadian citizen. She has her “Green Card” which took almost three years to get. She has a work permit, which took a year to get. In other words, we played by the rules. We paid the fees, etc., too. So, between you and me, I don’t have a lick of sympathy for these people who have entered the U.S. without following the rules and the law. Sorry, like in the game of Chutes and Ladders, you get to go back to square one and start all over.

Unfortunately, that is not the politically correct view we should have. We should be empathetic and understand that most of these people are here contributing to the U.S. economy (supposedly doing jobs “normal” Americans refuse to do and would rather sit out collecting on welfare and extended unemployment), but I am not sure I buy that argument.

And then we are supposed to be welcoming of those young people whose parents brought them here illegally more than five years ago and are between 16 and 30 now because they weren’t responsible for their plight, their parents were.

With all due respect to what are probably righteous and upright individuals, but sorry but that is equine fecal material. Of course, we can’t apply the “law” to you because it wouldn’t be “fair”. That is part of the problem with our society today: We are carving out so many exemptions to applying the law that it no longer applies to anybody. And that really burns me.

You see, I happen to be one of those people who firmly believes that the law – any and every law – should apply to everybody. It shouldn’t matter what race, religion, ideology, color, economic status, wealth or whatever. When it comes to the law, we all should be equal before it. Is that what we have now? Not only no, but HELL NO! and that is wrong.

The easiest place to start is the federal tax code, particularly the income tax portions of it for both individuals and corporations. The code is so riddled with exemptions, deductions and tax credits (most tailored for specific special interest groups, rich and poor) that it is not surprising few Americans do their own taxes. They go out an hire someone professing to be a professional who has studied and understands the intricacies of it, or buy a computer software program that promises the same.

I know, and understand, all the various reasons given for all those exemptions, deductions and tax credits, but they are wrong. They are wrong because they make some pigs (oops, people) more equal than others, to borrow a cliché from George Orwell’s Animal Farm.

It doesn’t matter what the law is, you will see that it has been tailored to impact one group while leaving another group unaffected. You see this in all sorts of regulatory law and administrative law where the regulations and rules only apply to individuals or corporations that meet certain criteria. Don’t meet the criteria, and then the law doesn’t apply.

Sorry but that is bovine scatology.

So, these people going around the country making a big deal that they have no papers? Ok, Immigration and Customs Enforcement, where are you? Got a group that is making it easy for you and are in violation of the rules you are supposed to enforce. Oh, that is right; our President (you know the man who is constitutionally empowered to enforce the laws of the United States) has told you not to enforce that law. It seems that he either disagrees with the law as it stands … or he has some other reason (like trying to buy votes of the Hispanic community – please, people, don’t sell your souls and your votes so cheaply).

I didn’t know that we could pick and choose what laws we wanted to obey. Hey, do you think that is a great idea? Hell, why have any laws then at all. Let’s just let our hair down and enjoy the anarchy. I mean that why should we let government control any of our activities? Hey, progressives, I need to hear from you on this. Why should government tell us what to do on anything? Why should government be allowed to regulate any of our behaviors? If we want to go out and kill someone, Hell, it is our choice, where does the government have any business in it.

Heck, if we want something, aren’t we just allowed to take it?

I know I am being sarcastic here, folks, but it seems to me that when we stop applying the law to all, and only apply the law selectively, then we are drifting into deep trouble.

Yes, I know prosecutors will tell you all over the country that they and the court system is overwhelmed and that they can’t prosecute every case of a broken law. They plead for prosecutor’s discretion. Seen far too much of that in my years of covering court and putting court news in the paper. Plea bargains are fine, so are suspended sentences, but when you are prosecuting a person for a seventh offense DUI, or fifth time for driving while suspended, or the umpteenth time for assault, battery or burglary … or armed robbery or violations of stock exchange regulations, then it is time to reexamine your priorities. As prosecutors, they need to really get out there and explain why some laws are “good” and need to be enforced and why some laws are “bad” and shouldn’t be on the books.

However, I know that a) that takes too much work and b) it is easier to just game the system.

I guess, if this is what the American people like, or at least are willing to tolerate, then I should, as Pappy used to say, “Go back in the teapot.” I just wish more people would say it is time for this crap to stop.

Enforce the law, or repeal it and let us take the consequences.