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The Congressman Doth Protest Too Much, Methinks: Michael A. Olivas

November 29, 2014 (3 min read)

"Representative Lamar Smith (R-TX) has written a letter to the Houston Chronicle indicating that I have misunderstood his views on the efficacy and legitimacy of Deferred Action and other forms of prosecutorial discretion, in my November 22, 2014 op-ed, also appearing in the Houston Chronicle.  If that were true, it would be because I carefully read the November 4, 1999 letter he wrote, where he and other signatories urged wider and deeper use of prosecutorial discretion:

'We write to you because many people believe that you have the discretion to alleviate some of the hardships, and we wish to solicit your views as to why you have been unwilling to exercise such authority in some of the cases that have occurred. In addition, we ask whether your view is that the 1996 amendments somehow eliminated that discretion. The principle of prosecutorial discretion is well established. Indeed, INS General and Regional Counsel have taken the position, apparently well-grounded in case law, that INS has prosecutorial discretion in the initiation or termination of removal proceedings. Furthermore, a number of press reports indicate that the INS has already employed this discretion in some cases.

True hardship cases call for the exercise of such discretion, and over the past put year many Members of Congress have urged the INS to develop guidelines for the use of its prosecutorial discretion. Optimally, removal proceedings should be initiated or terminated only upon specific instructions from authorized INS officials, issued in accordance with agency guidelines. However. the INS apparently has not yet promulgated such guidelines.

The undersigned Members of Congress believe that just as the Justice Department's United States Attorneys rely on detailed guidelines governing the exercise of their prosecutorial discretion. INS District Directors also rely upon written guidelines, both to legitimate in their eyes the exercise of discretion and to ensure that their decisions to initiate or terminate removal proceedings are not made in an inconsistent manner. We look forward to working with you to resolve this matter and hope that you will develop and implement guidelines for INS prosecutorial discretion in an expeditious and fair manner.'

The letter is here, and I have not misread what was a clearly-worded desire that the use of such prosecutorial discretion was a good thing.

While Mr. Smith's 1999 letter discredits his present-day protests that those of us who read it would actually cite it, he was heard just as clearly by President Obama. The President and DHS officials have thoroughly and in detailed fashion issued exactly the kind of guidelines for which Mr. Smith called, both in the "Morton Memoranda" and the more recent Deferred Action for Childhood Action (DACA). Using the very discretion that Rep. Smith acknowledged was legitimate, almost two-thirds of a million undocumented students have been accorded DACA status, with more to come under the new program outlined by the President last week. Surely Mr. Smith recognizes that prosecutorial discretion can, well, be used at the discretion of the Administration. He cites the "initiation or termination of removal proceedings" as textbook examples of such discretionary authority. Who does he think is most often in such removal proceedings? Although he mentions legal permanent residents in his letter, this group was only a subset of the people who are in the system and the letter was in no way so limited.

Prosecutorial discretion is prosecutorial discretion, and we should all be grateful for Mr. Smith for his urgings on the record that such choices are lawful and legitimate-indeed, welcome. If he fell off his horse on the way to Damascus and changed his mind, then he should acknowledge that he has done so. But his 1999 letter is an inconvenient truth.

I respectfully suggest that instead of throwing up such radar chaff, he and the other signatories still in Congress act on comprehensive immigration reform. Doing so would be coming full circle for his robust endorsement of prosecutorial discretion." - Michael A. Olivas, William B. Bates Distinguished Chair in Law, University of Houston Law Center