If you have spent any time listening to Hate TV and Hate Radio lately (and given Hate TV/Radio’s monopolization of the airwaves, who hasn’t?), you have heard Messrs. Limbaugh, Hannity, Beck et al. rant and rave about President Obama’s partial implementation of the Dream Act by executive action. Specifically, President Obama has decided that he will not deport law-abiding young men and women who grew up in the United States, who would qualify for a path to citizenship under the Dream Act. Hate TV/Radio can’t take issue with the substance of the Dream Act, because Saint Ronald of Reagan once said, “I believe in the idea of amnesty for those who have put down roots and lived here, even though some time back they may have entered illegally” (and then Saint Ronald gave amnesty to three million of “those” and “they”). So what Hate TV/Radio is left with is the argument that by taking executive action, the President supposedly is assuming the power of a dictator, in deciding what law he will enforce or not enforce.
Unfortunately, in response to this right-wing attack, I have heard no rebuttal, no riposte, no rejoinder, no repartee, and no reprisal. And that is unfortunate, because what they’re saying just isn’t how it works.
It is true that Article II, Section 3 of the Constitution says that the President shall “take care that the laws be faithfully executed.” But that doesn’t make the President some kind of enforcement-bot. The President, like a prosecutor, has prosecutorial discretion.
Under the principle of prosecutorial discretion, not every case of enforcement that might be brought can be brought, or should be brought. Officials with executive authority can and should establish enforcement priorities, and act on those priorities. Which exactly is what President Obama has done.
When Supreme Court Justice Robert Jackson was Attorney General, he explained it this way: “Law enforcement is not automatic. It isn’t blind. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”
In the case of Oyler v. Boles, 368 U.S. 448 (1962), the US Supreme Court specifically held that “reasonable selectivity in enforcement” is constitutional. Not dictatorial; constitutional.
What Hate TV/Radio is doing is following the instructions laid down by Newt Gingrich in 1990, in his Orwellian essay “Language: A Key Mechanism of Control.” Gingrich told Republicans to vilify Democrats with vituperative words and phrases, one of which was “abuse of power.” The Right Wing is accusing President Obama of abuse of power regarding the Dream Act because that term is on Newt’s list of magic evil words. (Newt Gingrich is sort of like abolitionist John Brown in reverse; even after defeat, Newt’s lies go marching on.) But on this one, Hate TV and Radio are wrong, totally wrong, and the President is right.
Someone should say that. And I just did.