If federal law enforcement officers apprehended a person who had been using false Social Security number, a federal prosecutor with a heavy caseload dominated by more serious crimes might decide not to indict the person. Whatever its merits, that would be an act of prosecutorial discretion.
But what if the prosecutor were to tell this user of a false Social Security number: It is OK for you to continue using that false Social Security number tomorrow. In fact, you may do so with impunity for the next three years.
Would that be an act of prosecutorial discretion? Or would it effectively make the prosecutor a co-conspirator with someone using a false Social Security number?
In the case of Texas v. the United States, U.S. District Judge Andrew S. Hanen issued an injunction on Monday temporarily stopping President Obama's unilateral action to allow illegal aliens to stay in the United States, get work authorizations, and obtain Social Security numbers.
In his decision, Judge Hanen clearly and forcefully explained how the administration's new immigration policy is not an act of prosecutorial discretion.
In this case, 26 of the states joined together and sued the federal government to stop Obama's unilateral amnesty of illegal aliens, which has been presented by the Homeland Security Secretary Jeh Johnson in the form of a program called "Deferred Action for Parents of Americans and Lawful Permanent Residents."
"The crux of the states' claim is that the defendants violated the Constitution by enacting their own law without going through the proper legislative or administrative channels," said the judge.
The administration -- in court at least -- argued that DAPA is merely an act of prosecutorial discretion that prioritizes the use of limited DHS resources.
Judge Hanen unambiguously conceded that the executive branch does indeed have broad prosecutorial discretion that a court cannot rightfully challenge.
"Further, as a general principle, the decision to prosecute or not prosecute an individual is, with narrow exceptions, a decision that is left to the Executive Branch's discretion," he wrote.
"Consequently, this court finds that Secretary Johnson's decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch, to the extent they do not violate any statute or the Constitution," he said.
But then the judge declared that in its DAPA program, Obama's Department of Homeland Security is doing far more than merely foregoing enforcement of the law against certain violators.
"Instead of merely refusing to enforce the [Immigration and Nationality Act]'s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security Numbers, work authorization permits and the ability to travel," said the judge.
"Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits," he said. "Non-enforcement is just that -- not enforcing the law. Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations."
"This court," he said, "seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such 'non-enforcement' decisions would include the affirmative act of bestowing multiple otherwise unobtainable benefits upon the individual."
The judge sealed his case that the administration's immigration action is not merely an act of discretion, but a change in the law itself, by quoting Obama.
"What is perhaps most perplexing about the defendant's claim that DAPA is merely 'guidance' is the president's own labeling of the program," said the judge. "In formally announcing DAPA to the nation for the first time, President Obama stated, 'I just took an action to change the law.'"
The Constitution, of course, does not give Obama the power to change the law.
If Obama succeeds in usurping that authority, he and future presidents will use it for more than granting illegal immigrants work permits and Social Security numbers.