see hed. Often brought up as gambit re executive authority nowadays, specifically to President Obama’s recent actions/proposed actions on illegal immigrants.
A different Constitutional issue I’ve been wondering about–different because it’s a city (let alone state)/federal one–is, eg, NYC’s programs that are designed specifically to evade or overrule federal laws on illegal aliens.
Not sure a president could order the IRS (and presumably Justice Department) not to pursue any and all tax evasion.
But based upon the arguments presented by Obama related to Immigration matters perhaps a president could order those departments to prioritize certain types of evasion so that someone further down the list would never be troubled by prosecution due to a lack of resources to investigate and bring charges.
Of course this sort of thing can change with the political winds. With the change of an administration suddenly the case that is sympathetic to me becomes targeted and the guy I think they should put under the thumbscrews could be let off.
The Justice Department is within the Executive branch, and has wide powers to interpret any procedural guidelines in the code – without reference to the Legislative branch, which simply writes the code.
An analogous situation arises in local criminal proceedings. A state legislature writes criminal laws, but law enforcement officers and prosecutors use their own discretion in deciding how aggressively to enforce and prosecute any particular existing laws, for example, drug laws…
Yes, it seems to me that, as the head of the Executive branch, the president has the authority to order any federal agency to change the way they execute the laws. S/he could say “Don’t prosecute anyone for tax evasion unless the amount they owe is more than $1,000.” Then on Tuesday, make it 1 million. Then 1 billion. Suddenly nobody is getting prosecuted. I am not a constitutional lawyer.
Whether the president could withstand the backlash from congress is another matter. Impeachment would be an option. Remember, successful prosecution and removal from office doesn’t require that they actually prove any high crimes. It only requires that they can get enough members of congress to vote that, in their opinion, what the president did was a high crime. Make enough people angry enough and you can get them to vote for anything even if it’s not true. Another option would be to vote that the president is incapacitated due to mental illness and unable to perform his/her duties, in which case the vice president becomes the new president.
President Clinton famously pardoned Marc Rich — which amounts to the same thing. Although the late Mr. Rich also had racketeering, and other, charges pardoned, which muddies the issue.
Mr. Rich was apparently worth $1 billion, which implies a/ consideration not to be given to a tiny pet shop owner who cheats on bird-seed invoices. b/ not paying taxes is the royal road to wealth.
A presidential pardon is absolutely no way the same thing.
How binding is the oath to uphold the laws of the United States? The same could be asked of state-level police officers, deputies and district attorneys, who also usually take an oath to uphold and faithfully execute the laws of their state. At what point are they no longer upholding the law by choosing not to prosecute certain crimes?
That’s the million dollar question and one that does not have a GQ answer. Prosecutorial discretion is an important concept. Sometimes there are trivial violations of the law, extraordinary circumstances, or simply little used laws on the books that nobody is asking to be prosecuted. Other times, limited budgets mean that law enforcement efforts are directed elsewhere. To demand strict, rigid adherence to the literal words of the code always and equal enforcement of all laws at all times would create some unjust situations.
On the flip side of that is using such discretion to create, as a practical effect, a repeal of laws that the executive simply disagrees with.
The second one, IMHO, is abuse of that discretion and a failure of the oath of office.
Which programs are you referring to? I know there are a number of NYC policies that aren’t particularly helpful to ICE, but they aren’t designed to evade or overrule Federal laws. They’re designed to meet the perceived needs of NYC. Police officers don’t question crime victims or witnesses about their immigration status because the city wants them to come forward. Public hospitals don’t ask about immigration status because the city doesn’t want people walking around spreading diseases because they are afraid of ICE.
The most recent issue with the involves the city no longer holding people at Rikers Island for immigration after their local sentence was completed. There isn’t any legal requirement for the city to hold people for whom no warrant has been issued - and a day at Rikers costs about $400. Whatever the politicians might be saying to play to their audience, I know the system well enough to know that the real issue is likely to be the money, along with the fact that the feds don’t pick them up quickly and most don’t go straight from custody to deportation.
Not the Rikers thing.
An unpassed bill that hasn’t yet been subjected to court scrutiny isn’t a thing, either.
The first seems to be warning people about immigration fraud and letting them know that there is a free confidential helpline they can call for immigration assistance. Doesn’t seek to overrule or evade any Federal laws.
The second has zero chance of passing - but as far as I can tell it also doesn’t seek to evade or overrrule Federal laws. Neither one is helpful to ICE, but that’s a different issue.
Every DA in every county sets the priorities of his office and his personnel. He decides where to put budgeted resources and how best to use staff hours, consistent with his philosophy and his sense of the needs of the community. He communicates it and those attorneys in his office will have a better future, and and easier time, if they proceed to implement his vision as opposed to his own as long as he is in office. Now obviously the President has a more tenuous position and fewer tools over the IRS bureaucracy than that DA, but the principle is the same. the president is doing nothing improper to stating his preferences with regard to priorities.
Arguably it aids and abets helping people stay in the country in violation of federal law.
Confidential helpline=We won’t tell the feds that you are in the country illegally AND we will help you stay in the country illegally. I know that the states have no obligation to enforce federal laws, but to actively conceal violations of federal law goes a step further.
Imagine a state confidential hotline that helped residents with gun repair. Further imagine that if you told the person on the other end that you owned a brand new fully auto M-16 that kept jamming on you. Would you believe that it violates federal law to instruct the caller on how to fix the jamming issue?
I believe that by executive order a president can pardon most any crime.
Only if you think “immigration assistance” means we’ll help you stay here illegally" rather than “we’ll refer you to reputable agencies (that can help you stay legally)” (which is what I think the sign actually says, but my Spanish is not so good)
Does it ? I don’t know. Is there some Federal law that obligates states or municipalities to notify the Feds every time an illegal immigrant comes to their attention? Or even to ask people about their immigration status? Every article I’ve seen about this issue suggests that it is only required in very specific circumstances and that NY’s policies follow the requirements- they ask and notify the Feds when it’s legally required and do not ask or notify the Feds when it is not.
I don’t think the President has the authority to flatly tell any agency to not prosecute. But he does have the authority to set priorities.
So he can say something like “Go through all of your open cases. Sort them into two groups. Put all the cases involving more than a million dollars in the first group and put all the cases involving less than a million dollars in the second group. And then I want you to finish all the cases in the first group before you start working on cases in the second group.”
Now he’s not telling the IRS not to prosecute cases. He’s not even telling them to avoid any particular case. In theory, the IRS will prosecute every case it has. But in the real world, he knows that the IRS doesn’t have the resources to prosecute every case. So by putting one group of cases behind another, he knows cases in the second group won’t ever make it to the front of the line.
Only federal crimes.
Why not? He’s the head of the executive branch, isn’t he? I hear all the time about executive heads of subnational entities (states, counties, etc.) telling their law enforcement officers not to prosecute certain crimes, so what specifically prevents the president from doing the same?
Isn’t it a case of
The president can tell the people in the executive what he wants them to do.
Those people can then comply or ignore those instructions.
The president can then fire them and try to put someone in their place who will do what he wants.
If what the president wants is illegal (or just really really not liked by Congress) they can impeach him for it.
Essentially what happened in the Saturday Night Massacre? Nixon told the Attorney General to fire the special prosecutor. AG refused and resigned. Next guy in line refused and resigned. Next guy in line said “whatever you want, boss.”
So Obama could say to the head of the IRS “I want you to do X” and the head of the IRS could say “pound sand Mr. President.” Then things would play out in public.
