The federal government has been arguing that the terror attacks in Paris and San Bernardino require that it be able to circumvent encryption of messages, something they have sought for a long time. A cynic might argue that they see their opportunity and are seizing it.
But let’s assume that they actually need the access to encrypted messages to combat terrorism. How can the government be monitored so that the acquired information is not used for other purposes, such as non-terror law enforcement or disclosure for political purposes?
Here is one idea. Congress should pass a law that prohibits the use of this information for any purpose other than the prevention of terrorism. The sanctions for a violation should be both criminal and civil. Moreover, an Inspector General should be given the tools to uncover any such wrongdoing.
What is the power of an attorney general to pry into private papers? Earlier this month, New York Attorney General Eric Schneiderman issued a subpoena to Exxon, demanding that the company turn over many of its records, so that he could investigate it for fraudulent statements about the climate. Many Americans cheered. The subpoena, however, comes with constitutional dangers.
The exact content of the subpoena is not yet known. It appears, however, to have come from Attorney General Schneiderman rather than from a grand jury, and if this is true, it is problematic.
DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct (link no longer available).”
Respect for our constitutive system can be as important as positive constitutional law. Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary. Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary. Order in this system is maintained by the statesmanship of the political branches.
Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law. But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.
(For Part I, see here.)
Another argument made by Judge Kavanaugh is that eliminating prosecutorial discretion would involve the legislature exercising executive power:
The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. [Citing Montesquieu and Federalist No. 47] After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive).
Once again, I think this argument does not follow. It is probably the case that
Congress cannot pass a law saying that the President must prosecute a particular person for violation of a crime. But that does not mean that Congress cannot pass a law saying that the President must bring an action against all persons where there is a probable cause to believe that they committed a particular crime. In this case, the President makes the decision as to whether there is probable cause, but there is no prosecutorial discretion. And if there are sufficient funds to finance all the actions, then the President must bring them.
Recently, D.C. Circuit Judge Brett Kavanaugh has argued that the President enjoys a constitutional power of prosecutorial discretion. Mike Ramsey may also believe that the President has this power. I have not fully studied this issue, but I have reviewed much of the literature and I am puzzled as to why people believe that the President enjoys any constitutional power of prosecutorial discretion. Where does it come from? What are the original materials that support it? The Congress ordinarily has a power to mandate the execution of a law. Judge Kavanaugh writes that "[p]rosecutorial discretion does not include the power to disregard other…
In Crane v. Napolitano, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged. The basis of the challenge is that Obama’s order is inconsistent with the governing statute. The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue. The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.
Let’s assume that Congress did take away the President’s prosecutorial discretion. Is that constitutional? In my opinion, the answer is yes, at least under the Constitution’s original meaning. First, the President is normally required to follow laws that Congress passes. Even if the President does not like the law, that does not give him the right to ignore it. The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution. Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive. Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement.