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Opponents of prosecutorial discretion have little recourse

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Opponents of the Obama administration's use of prosecutorial discretion to enforce immigration law have no clear way to stop it, says a report from the Congressional Research Service.

Unless the opponents are immigrants themselves, they likely lack standing to challenge prosecutorial discretion in court. They may also find it hard to prove that the government's failure to follow to the law particularly injured them.

Alternatively, government employees might say they've been forced to violate their oath to uphold the law. But courts have said that allowing lawsuits for that reason would depend on individual opinions of what federal law requires, according to the report, which Secrecy News posted (.pdf) online Jan. 22.

In immigration cases, the report notes, courts tend to defer to the executive branch anyway, because immigration decisions often involve foreign relations or national security.

Courts might stop selective prosecution if the administration were to use it to discriminate on the basis of race or religion. The report cites the 1886 Supreme Court case Yick Wo v. Hopkins, where the court ruled that prosecutors violated the Equal Protection Clause when they enforced a state law about laundry businesses only against people of Chinese descent.

They could also, in theory, find that the executive branch has abdicated its duty, but plaintiffs would have to show that the executive branch isn't enforcing a law at all or has consciously decided not to, the report says.

In its deferred action policy, the Homeland Security Department has made it clear that prosecutorial discretion decisions are made on a case-by-case basis, and that its policies don't prevent the department from enforcing the law when it chooses to.

The report also casts doubt on Congress' ability to limit the executive branch on prosecutorial discretion. But it might be able to use its appropriations and oversight authorities to impede DHS's implementation of certain policies.

For more:
- download the report from the Secrecy News website, R42924 (.pdf)

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