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The Electoral Cynicism of Obama’s Amnesty

By Jonathan Keim | November 21st, 2014

He wants this policy to depend on who controls the White House in 2017.

Last night, President Obama announced that for the next three years his administration will halt deportations of as many as 5 million illegal immigrants and will instead give them work authorization through the Department of Homeland Security.

Although President Obama’s first speech of the 2016 campaign season didn’t go into many precise details, the administration released an Office of Legal Counsel (OLC) memo outlining the administration’s legal theory, which spends most of its time arguing that the program is a legitimate exercise of “prosecutorial discretion.” The administration frames the program as an exercise of the executive branch’s ability to make decisions about enforcement priorities. But what President Obama proposed last night goes beyond that relatively modest legal principle.

Historically speaking, prosecutorial discretion arose in criminal law and predates the Constitution by several hundred years. Under the common-law practice of nolle prosequi, the English Crown could terminate — or simply not initiate — a criminal prosecution. No court would second-guess that decision. That practice was recognized and has continued largely without modification in the American system.
Because of its similarity to other aspects of government enforcement decisions, courts have taken a similar approach in the civil and administrative context, which is where immigration law generally sits. In 1985, Justice William H. Rehnquist noted in Heckler v. Chaney that courts had traditionally been unwilling to condemn government inaction on the grounds of institutional incompetence. In his view:

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