Politics & Policy

Why Obama’s ‘Prosecutorial Discretion’ Excuse Is So Implausible

The goal of that doctrine is to better enforce the law, not ignore it.

‘Prosecutorial discretion,” which President Obama invoked to justify his Deferred Action for Childhood Arrivals (DACA), and which is the justification for his impending executive action, is the necessary recognition of a straightforward problem: Criminality exceeds the resources available to prosecute it, so law enforcement must prioritize.

President Obama does not have available to him the resources necessary to deport the 12 million illegal immigrants currently residing in the United States. However, as the Washington Post’s Greg Sargent writes in his apologia for the president’s plan, “For this to be ‘prosecutorial discretion,’ the administration must continue to fully deploy its deportation machinery.” So, the obvious question is: Has the president made full use of the resources available to him? Is this exercise of “prosecutorial discretion” justifiable?

President Obama has found unlikely foes in immigrant-rights advocates, who have taken to calling him America’s “deporter-in-chief.” They regularly cite his “2 million deportations,” claiming that George W. Bush required two full terms to deport that many people. According to these groups, President Obama has enforced the law far more aggressively than any of his predecessors.

“Deportations,” though, is a slippery word — as the president himself knows. At a roundtable with Hispanic reporters in 2011, he sought to reassure his detractors on the left: “The statistics are actually a little deceptive because . . . we’ve been apprehending folks at the borders and sending them back. That is counted as a deportation, even though they may have only been held for a day or 48 hours.” Hence the administration’s “record deportations.”

In everyday immigration parlance, “deportations” is used to refer to “removals” — compulsory expulsion from the country via an “order of removal”; “returns” — expulsion without that legal order; or both taken together. In an effort to present itself to right-leaning critics as tough on border security, the Obama administration has increasingly passed off returns as removals by changing the way immigrants apprehended at or near the border are processed. This has inflated the number of removals to record levels — around 400,000 per year since President Obama took office, adding up over five years to the 2 million deportations about which La Raza and others are so exercised. Total removals during George W. Bush’s presidency were, absent the current administration’s creative accounting, obviously lower. Returns, however, were much higher.

Department of Homeland Security statistics show that, when it comes to total number of deportations — removals and returns together — Bill Clinton and George W. Bush were far more aggressive in enforcing immigration law than Obama has been. In FY 2000, Clinton deported a record 1.86 million illegal immigrants — on top of comparable numbers in the two years preceding. In FY 2009, by contrast, Obama deported 975,000 illegal immigrants, and the total number of deportations recorded by his administration has decreased each year since. From FY 2008, the last year of the Bush administration, to FY 2013, total deportations have fallen 47 percent.

There are other indications that the administration has deprioritized border security. While U.S. Customs and Border Protection saw its budget grow by $700 million from FY 2013 to FY 2014, Immigrations and Customs Enforcement funding has remained unchanged, and its FY 2015 request would reduce its budget by $250 million, a 4.5 percent decrease. More to the point, though: Watchdog site FierceHomelandSecurity reported in 2013 that, while President Obama’s proposal to Congress for FY 2014 did include a $100 million increase to ICE’s criminal-alien program, devoted to locating and removing illegal immigrants who have conducted crimes while in the country, it was part of a proposed 11 percent cut to ICE’s total budget — including an 8 percent decrease in its detention-and-removal budget, a 12 percent cut to its custody operations, and a 21 percent cut to its fugitive operations. This, of course, while the president seeks to massively expand government spending on, among other things, infrastructure projects and subsidized college tuition. Since ICE is tasked with enforcing immigration law for the 12 million illegal immigrants living inside American borders, these data suggest that the president has deprioritized that enforcement.

Setting to the side any potential legal consequences of the president’s planned executive action, there is a significant political point here. To complaints that he is acting with disdain toward the law (whether or not he is violating it), the president has replied that he will forgo executive action if Congress will pass an immigration bill that is agreeable to him. He has assured them that he will happily sign and execute it.

But it is clear the president has had little interest in enforcing immigration law as it is currently written, going so far as to intentionally mislead lawmakers across the aisle about the extent of deportations on his watch. Why should Republicans believe that he would be faithful to the terms of a different law?

“Prosecutorial discretion” is a reasonable justification for a variety of actions, and Republicans recognize that the president has that power. However, it is a plausible explanation only when it is accompanied by good-faith efforts to carry out the law as written. That clearly has not happened here.

— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute.

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