Well, there is at least an argument to be made that the executive power might include defining the jurisdiction of the United States. Remember, that’s the second condition of birthright citizenship in the 14th Amendment – to be born or naturalized in the United States AND subject to the jurisdiction thereof.
“Prosecutorial discretion” was the basis for Obama using executive order to implement DACA, and that at least had a respectable basis for the argument: if there is not enough money in the budget to fully enforce immigration law, then the executive decides how to utilize the funds available to enforce whatever part of immigration law he thinks suitable.
I didn’t like Obama’s idea of which parts were suitable, but the exercise of “prosecutorial discretion” seems legitimate. It’s a necessary rule for making decisions among competing priorities.
Similarly, if there is not enough money in the budget to fully enforce citizenship law, or to fully apply the jurisdiction of the United States … then under that same doctrine of “prosecutorial discretion” the executive has power to select how the available funds are used – which parts of citizenship law are enforced, which parts of United States jurisdiction are applied. As in, we’re not going to enforce immigration laws against people who fit DACA guidelines … or we’re not going to apply United States jurisdiction to children of people here illegally.
“Subject to” the jurisdiction of the United States can logically have, I think, a tangible aspect to it. It’s not just “eligible for” such jurisdiction in theory, but rather that jurisdiction has to actually be applied to you. So if there’s not enough money in the budget to actually apply the jurisdiction of the United States to you, then there is a very real sense in which you are not subject to that jurisdiction. It’s much like being “under the protection” of some entity. If that entity has no presence in your area, then you are not “under their protection” in any real sense.
A clear mandate from the legislature would be best, but lacking that – and lacking funds to fully enforce all laws – the doctrine of “prosecutorial discretion” is vital to making decisions.
Thank goodness for deficits and debt limits, right? !!! It means there’s not enough money coming in or available to fully enforce the laws; it guarantees that the executive can broadly apply “prosecutorial discretion”. When life deals you lemons, make lemonade!
Democrats, if you don’t like Trump exercising “prosecutorial discretion”, then pass a damn budget to clarify what is funded. Oh, that’s right, you’d have to submit to Republican priorities if you passed a budget. Well, take your pick: you can submit to Republican priorities by joining in the passing of a budget … or by having Trump exercise “prosecutorial discretion”.
Some famous President once said, “Elections have consequences.” Yep, and one of those consequences is the power to exercise “prosecutorial discretion”.
ERpundit – 10/31/18