Politics & Policy

DACA: Trump Does the Full Obama on Prosecutorial Discretion

(Reuters photo: Kevin Lamarque)
Joining Chuck Schumer and Nancy Pelosi, he reaffirms his Democratic predecessor’s sleight of hand.

The Donald’s renewed romance with old pals (and donees) “Chuck and Nancy” is already paying more dividends . . . for Democrats. If the president’s tweet on Thursday morning is to be believed (not always a sure thing), he has fully adopted the unconstitutional distortion of prosecutorial discretion employed by President Obama to avoid executing the laws faithfully.

Substance aside, the appearance of the tweet is a story unto itself. Trump was so giddy over sandbagging congressional Republicans and his own Treasury secretary that he called Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi on Thursday morning to gloat about the positive news coverage — squealing, “The press has been incredible!” Smitten, he wanted to explore other potential areas of appeasement — er, I mean, bipartisan cooperation. This should go well: An all-id-all-the-time POTUS, who cares far more about media commentary than policy, rediscovers that nothing floats the MSM boat quite like a nominal Republican who accommodates Democrats while humiliating his party in the process. Can’t you just feel him evolving!

While she had the infatuated president’s ear, the New York Times relates:

Ms. Pelosi took the opportunity to ask Mr. Trump to send out a message on Twitter emphasizing that the 800,000 immigrants enrolled in a program that he canceled this week can keep their protection from deportation and work permits over the next six months as it phases out.

That program, of course, is DACA (Deferred Action for Childhood Arrivals). Contrary to the Gray Lady’s assertion — and as we explained this week — Trump has not canceled DACA. Nor is it being phased out. Trump has signaled that either it will be codified in law or he will continue the program by lawless executive action — as he is doing for the next six months, as he has done for the last eight months, and as his predecessor did for four years.

In any event, as Nancy tells it, “I asked him to do it. Then boom, boom, boom! The tweet appeared and that was good.” You can see why she’d say that. Trump tweeted:

For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about — No action!

Translation: There is no daylight between Trump and Obama when it comes to ignoring the president’s constitutional duty to execute laws faithfully under the guise of prosecutorial discretion.

To repeat, properly understood, prosecutorial discretion is simply a resource-allocation doctrine. It is an unremarkable recognition of the fact that there are more violations of law than there are law-enforcement assets to investigate and prosecute them. The government has no choice but to prioritize: Serious crimes get the most attention; many less serious crimes, for the most part, are overlooked. But there’s a caveat: While a low priority is assigned to comparatively less serious crimes, they are still considered crimes. The government evaluates each case individually and reserves the right to take action against the low-priority misconduct in appropriate cases — for example, in a case involving a recidivist offender or an otherwise hardcore criminal.

The point of decreeing DACA was not to exercise prosecutorial discretion; it was to confer de facto amnesty on a class of DREAMers, as the president — not Congress — defined them.

That was not Obama’s practice. He disingenuously invoked “prosecutorial discretion” when, in reality, he was choosing not to enforce congressional statutes to which he objected on policy grounds. Substantially, there was no case-by-case review; just occasional lip service to the notion of individualized treatment when he’d announce non-enforcement directives and “waivers” of this or that statute. As noted above, the exercise of prosecutorial discretion cannot be avoided. If that is all the executive branch is doing, there is no need to make a big announcement about it. The point of decreeing DACA was not to exercise prosecutorial discretion; it was to confer de facto amnesty on a class of DREAMers, as the president — not Congress — defined them.

DACA is a good example of how ludicrously far Obama took the “prosecutorial discretion” sham. Quite apart from the categorical amnesty, the most constitutionally offensive thing about DACA is its awarding of positive legal benefits to aliens — in particular, work permits. Besides being a blatant usurpation of congressional authority, the grant of a benefit has nothing to do with prosecutorial discretion. The doctrine rationalizes non-enforcement of the laws in individual cases; it does not manufacture legal entitlements for a class of beneficiaries — or at least it didn’t until Obama came along.

Now, prompted by Pelosi, Trump has reaffirmed Obama’s prosecutorial-discretion sleight of hand. In fact, Trump’s action is arguably worse — yet another instance of the folly of announcing policy via Twitter and its 140-character limits (including exclamation points!). The 2012 Department of Homeland Security guidance through which the Obama administration implemented DACA at least pretended that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.” Trump’s tweet doesn’t even go through the motions. He sweepingly declares that his reprieve applies to “all” DACA beneficiaries, promising that they “have nothing to worry about — No action!”

Let’s set aside the media-generated image of a toddler, dragged here by desperate parents through no fault of his own, who goes on to become valedictorian and land a great job at Google. Let’s make our hypothetical a 26-year-old illegal alien who came to the United States when he was 15, sneaking in with a small group of young males. This guy is a member of a violent street gang. He has managed to avoid any felony convictions — a couple of arrests expunged through diversion programs, so his rap sheet shows just one trifling disorderly-conduct conviction (it was actually a forcible assault, but a prosecutor let him plead it down to a minor misdemeanor). At the moment, he is a suspect in another nasty assault . . . but the gang has threatened the witness, who is now refusing to testify. The police and prosecutor would love to charge him, but they know it would be futile. Meanwhile, though he long ago dropped out of high school, he’s rigged a slot in a government-funded G.E.D. program — on paper, he’s in school.

Under Obama’s guidelines, our gang-banger qualifies as a DREAMer. And under the terms of Trump’s commitment, tweeted at Pelosi’s behest, he has “nothing to worry about” because there will be “No action!”

If it’s laudatory media he’s after, Trump is going to love working with the Democrats. His “Build That Wall!” base may not like it so much.


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