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The President has "prosecutorial discretion," in deciding when and how to enforce the law.
The executive action stems from two facts: that Congress has failed to act to deal with the eleven million, and that the president has "prosecutorial discretion" to defer deportation.
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For example, President Obama has exercised prosecutorial discretion in the past by not going after medical marijuana users for violating federal law but going after drug lords.
The Obama administration has used prosecutorial discretion, or the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.
We've seen how badly prosecutorial discretion has worked".
Bottom line: If you agree that it's not feasible to deport 11.3 million people, you have to accept that prosecutorial discretion needs to exist -- even if you don't agree with how it's being applied here.
As chief executive, they say, Mr. Obama has virtually unfettered "prosecutorial discretion" to decide when he will or will not prosecute criminal infractions.
ICE has also created prosecutorial discretion policies meant to up the proportion of high-priority deportees: repeat offenders and serious criminals.
Meanwhile, Presidents of both political parties have been using prosecutorial discretion to allow deferred actions [pdf] on deportable individuals for decades, and President Obama's new policy [pdf] still must be applied by federal officials on a case-by-case basis with no guarantees.
They have written House Speaker Nancy Pelosi and Minority Leader John Boehner stating that the "exercise of prosecutorial discretion has always been and should remain an Executive branch function.... [W]e have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes".
Some district attorneys have made such cases a priority but, using prosecutorial discretion, have designed specialized diversion programs.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com