Violating the Constitution Is Not the Way to Safeguard Constitutional Rights

Senator Ted Cruz is quite right that the only things the federal government should be doing in the area of firearms are safeguarding the Second Amendment rights of law-abding citizens and enforcing the law against criminals. Personally, I think firearms enforcement should primarily be a state-level concern. If you are going to have federal gun laws, though, Senator Cruz is also right that it makes no sense for the Justice Department to prosecute only 44 out of 15,000 criminals at a time when Washington is harassing lawful gun owners.

Nevertheless, in our constitutional system, the decision whether to prosecute someone is exclusively an executive function. Congress has no power to “direct” the Justice Department to indict anyone. By all means, Congress ought to flex its muscles here. The best ways to do that are (a) to hold the administration politically accountable, as Cruz is doing very effectively; and (b) to start slashing the administration’s budget. If the Justice Department is not going to spend the money Congress gives it wisely, Congress should give it much less money. If the administration is declining to do things Congress believes should be done, Congress should turn up the heat by taking away funding — lots and lots of funding — for the administration’s priorities.

Senator Cruz, who was the solicitor general of Texas for several years, is a very fine constitutional lawyer. Notwithstanding his statements to Sean, I’d be very surprised were he actually to propose that Congress try to dictate the exercise of prosecutorial discretion.

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