The executive prerogative to not enforce laws

[T.Lex]

However, Obama's despotism does exist. No one should be allowed to get away with defending law by whim.

So, a mandate to enforce EVERY SINGLE law immediately upon determination of probable case? What is this, a vote for job security for you?

Now, don't get me wrong, if every law WERE enforced every time, people would soon realize the crushing force of all the laws that have been enacted. And, LEO employment would go WAY up.

I'm not sure if that last thing is good or bad.

 

[steveh_131]

So, a mandate to enforce EVERY SINGLE law immediately upon determination of probable case?

Absolutely, otherwise you're a 'despot'. Try to keep up here.

 

[T.Lex]

Absolutely, otherwise you're a 'despot'. Try to keep up here.

I'm trying, but this is harder than it looks.

(TWSS)

So, to be a non-despot, a leader needs to NOT enforce laws.

Got it.

 

[Kirk Freeman]

This is not non-enforcement, but you know that. This is making law as Obama admitted.

This is the executive taking on the function of the legislature and making law on his whim.

 

[steveh_131]

(TWSS)

BOOM headshot

So, to be a non-despot, a leader needs to NOT enforce laws.

I certainly wouldn't make that argument.

 

[T.Lex]

This is not non-enforcement, but you know that.

For now, we'll have to agree to disagree on that. All I've seen is a change in when they'll seek deportations. Get into half-steps beyond that (granting citizenship, etc.) and then we'll find common ground. I haven't seen any clear description of what he's substantively "changing."

Frankly, the best analogy I can come up with not enforcing federal drug dealing laws in states that have legalized marijuana. That's executive non-enforcement, too.

I chalk up his mis-description of what he's doing as just another thing he is wrong about. He may be wrong about what he's doing, wrong about why he's doing it, but so far, it is his right to do it. IMHO

 

[Expat]

So, a mandate to enforce EVERY SINGLE law immediately upon determination of probable case? What is this, a vote for job security for you?

Now, don't get me wrong, if every law WERE enforced every time, people would soon realize the crushing force of all the laws that have been enacted. And, LEO employment would go WAY up.

I'm not sure if that last thing is good or bad.

The text of your comments seem to be arguing since prosecutorial discretion might be used in a few specific cases, it should be used in 5-30 million cases.

 

[T.Lex]

The text of your comments seem to be arguing since prosecutorial discretion might be used in a few specific cases, it should be used in 5-30 million cases.

might /= should

might == might

(Sometimes, might == right, but that's a different topic. Actually, it is applicable to this topic, since neither Congress nor the courts have an army. But I digress.)

Prosecutorial discretion can be used in 1 case or 100M cases. That's up to the prosecutor. That's why its called discretion. It is nice if there's a rational structure to it, put into rules/regulations/policies. But (assuming it isn't used against a protected class), it doesn't have to be.

 

[Denny347]

 

[Kirk Freeman]

Prosecutorial discretion can be used in 1 case or 100M cases. That's up to the prosecutor.

The prosecutor does not get to write the law without the General Assembly. Here the Executive is writing the law.

This is a akin to a Prosecuting Attorney deciding to rewrite the Indiana Code, e.g. Criminal Trespass.

All I've seen is a change in when they'll seek deportations. Get into half-steps beyond that (granting citizenship, etc.) and then we'll find common ground. I haven't seen any clear description of what he's substantively "changing."

He is not just taking non-action on deportation. He is giving work permits, signing up non-citizens for treats, inter alia.

Obama is re-writing the law at his whim, this is the essence of despotism.

 

[cwillour]

For now, we'll have to agree to disagree on that. All I've seen is a change in when they'll seek deportations. Get into half-steps beyond that (granting citizenship, etc.) and then we'll find common ground. I haven't seen any clear description of what he's substantively "changing."

Frankly, the best analogy I can come up with not enforcing federal drug dealing laws in states that have legalized marijuana. That's executive non-enforcement, too.

I chalk up his mis-description of what he's doing as just another thing he is wrong about. He may be wrong about what he's doing, wrong about why he's doing it, but so far, it is his right to do it. IMHO

As I and others have been saying, the issuance of visas and work permits are NOT prosecution issues. To use your analogy of marijuana, he is not only choosing not to prosecute for past violations, but he is also issuing the equivalent of a federal "license to consume" which exempts the individual from prosecution for future/ongoing violations. I would argue that only the decision regarding prosecution is within the purview of a prosecutor.

 

[steveh_131]

He is not just taking non-action on deportation. He is giving work permits, signing up non-citizens for treats, inter alia.

As I and others have been saying, the issuance of visas and work permits are NOT prosecution issues. To use your analogy of marijuana, he is not only choosing not to prosecute for past violations, but he is also issuing the equivalent of a federal "license to consume" which exempts the individual from prosecution for future/ongoing violations. I would argue that only the decision regarding prosecution is within the purview of a prosecutor.

Did you guys read the OP? This thread has a specific topic, and it's not Obama or his latest immigration stances. Let's look at the very first sentence of the OP:

"It is not tyranny or dictatorial to refuse to enforce a law."

Is it safe to say that most of us agree with this statement, in a general sense? If not, then let's have that discussion.

If we are agreed on that, however, then we could discuss more refined topics individually and perhaps refrain from insulting everyone who is supporting the stance of the OP that you apparently agree with.

 

[T.Lex]

Potential de-railment notwithstanding, couple points from the recent posts:

re: Work permits/visas - First, I have found no evidence that the Obama administration is granting work permits/visas to illegal aliens. If there is a source for this that is not speculation, please provide it. Second, I do have some professional knowledge about the process for legal work visas. There is a specific statutory process with requirements. If the Obama administration is granting work visas outside of that framework, it is an abuse of power. Keep in mind - allowing currently illegal people with US citizen relatives to request a change of status that might allow them to work IS NOT granting a visa or work permit. And this is an important distinction: those people have ALWAYS been able to change status. The problem was that they had to leave the country or be deported to do it. Now, they don't have to.

re: Citizenship - this is rehashing a bit of the above, but there are requirements for this. An illegal needs to change status to even start this process. If they have a US citizen relative, they could do that last month, last year, whenever, but they were subject to being deported. That option is now off the table. So, they can change status and start the process without leaving.

re: federal licensing of marijuana distributors - this is a bit of semantics. If the federales do not prosecute the [strike]dealers[/strike] distributors, they are in fact conceding to the state licensing system. So, yes, by abdication, they are licensing.

re: treats - well, that horse has left the barn, as I understand it. There are, apparently (and this was news to me) many programs that don't care whether the recipient is illegal or not. Apparently, that is part of the legislation. If Congress wants to limit programs to citizens and permanent residents, they can. With control of both houses, it'll be interesting to see if the Republicans try it.

re: trespass - as we both know, trespassing is prosecuted differently in different parts of the state - rural v. urban, etc. Maybe not ideal for a legal purist, but such is life.

Again, sourcing for some of these claims would be helpful. All I've found is that illegal family members of US citizens can "temporarily" not be deported while they change status.

 

[cwillour]

Did you guys read the OP? This thread has a specific topic, and it's not Obama or his latest immigration stances. Let's look at the very first sentence of the OP:

"It is not tyranny or dictatorial to refuse to enforce a law."

Is it safe to say that most of us agree with this statement, in a general sense? If not, then let's have that discussion.

If we are agreed on that, however, then we could discuss more refined topics individually and perhaps refrain from insulting everyone who is supporting the stance of the OP that you apparently agree with.

To be clear, I am referencing the OP's 3rd post (he has the first three posts in the thread) where he seems to lump all the president's as "not enforcing immigration laws to the maximum degree".

Obama is a hardcore statist, to be sure, but it is simply dumb call him an emperor for not enforcing immigration laws to the maximum degree.

My posts have specifically called out that I do agree that he does have some discretion in regards to prosecution under his administration, but that many of the actions are not related to prosecutions that would occur under his administration.

 

[cwillour]

re: Work permits/visas - First, I have found no evidence that the Obama administration is granting work permits/visas to illegal aliens. If there is a source for this that is not speculation, please provide it. Second, I do have some professional knowledge about the process for legal work visas. There is a specific statutory process with requirements. If the Obama administration is granting work visas outside of that framework, it is an abuse of power. Keep in mind - allowing currently illegal people with US citizen relatives to request a change of status that might allow them to work IS NOT granting a visa or work permit. And this is an important distinction: those people have ALWAYS been able to change status. The problem was that they had to leave the country or be deported to do it. Now, they don't have to.

From USCIS.gov:

Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks

In your experience, how does "employment authorization" differ from "work permit"?

Also from USCIS.gov, which I believe addresses your "change of status" comment:

[/QUOTE]Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.[/QUOTE]

and

Q5: If my case is deferred, am I in lawful status for the period of deferral?
A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.

Apart from the immigration laws, “lawful presence,” “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

As I understand it, the process is not a "change of status".

 

[rambone]

To be clear, I am referencing the OP's 3rd post (he has the first three posts in the thread) where he seems to lump all the president's as "not enforcing immigration laws to the maximum degree".

My posts have specifically called out that I do agree that he does have some discretion in regards to prosecution under his administration, but that many of the actions are not related to prosecutions that would occur under his administration.

The next president is not bound to uphold Obama's promises. He can continue enforcing the law as it is written.

 

[T.Lex]

Excellent stuff - thanks!

The definition of terms with all this is important.

From your cite, the "deferred action" is the we-won't-deport-you part of it.

Regarding the Adjustment of Status, it is apparently allowed-

Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.

The Adjustment of Status is a completely different process that has always been allowed (as far as I know).

Adjustment of Status | USCIS

The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.

The easiest way to do this is to have a US citizen family member.

I was hung up on the work permit/visa thing because of my experience with helping a couple different corporate clients bring people over. I think those were H-1B.

Edit: Some examples (in trying to find out more about adjustment of status):
http://www.usavisacounsel.com/artic...lts-deportation-of-alleged-unlawful-voter.htm
http://www.immigrantjustice.org/pre...-seeking-protection-under-u-visa#.VHZ-D7Hp9Z4

Neither directly on point, but interesting insight into how the system works.

 

[cwillour]

The next president is not bound to uphold Obama's promises. He can continue enforcing the law as it is written.

Not so certain about that as the employment authorizations are multi-year (according to the links.) If his intent was not to bind the future administration to some degree, why did he extend the work authorization period from 2 yrs to 3 yrs? In fact, since the USCIS site indicates the goal is to complete applications filed in 2015 by the end of 2016, the work authorizations they actually receive would likely not expire until 2018/2019. While they would be eligible for deportation, it appears to offer them and their employer the cover of "legal" employment up until their actual deportation (or the eventual expiration of the employment authorization.)

 

[cwillour]

I was hung up on the work permit/visa thing because of my experience with helping a couple different corporate clients bring people over. I think those were H-1B.

Edit: Some examples (in trying to find out more about adjustment of status):
Keathley v. Holder: Seventh Circuit Halts Deportation of Alleged Unlawful Voter - published Monday, August 27th, 2012
Seventh Circuit Expands Protections for Immigrants Seeking Protection Under the U Visa | National Immigrant Justice Center

Neither directly on point, but interesting insight into how the system works.

Yeah, my experiences with L-1s and their families are part of why the legal employment part jumped out at me.

 

[Notavictim646]

Which laws should be ignored? That's a policy decision, up for debate.

Except when it is a political decision that ignores the will of the people and avoids debate.

If there is no question regarding the constitutionality of a law, In my view, it is the responsibility of the executive to faithfully enforce the laws created by the peoples representatives.

Failing to enforce laws, or parts of laws, is a soft form of Tyranny that will continue as long as the voting public support it.