Althouse: "To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so..."

November 22, 2014

"To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so..."

"... in the case of helping people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments. Few other offenders have such a compelling moral justification for breaking the law. I strongly support the legalization of marijuana and the abolition of the War on Drugs more generally. But illegal immigrants violating the law to escape Third World conditions are considerably more deserving of our compassion than college students violating it to experiment with marijuana or other illegal drugs. If exemption from prosecution is acceptable for the latter, it should be permitted for the former too."

Writes Ilya Somin in "Obama, immigration, and the rule of law."

30 comments:

hoyden said...: Prosecutorial discretion may be justifiable but Obama's Executive discretion is not. Just as Democrat gun control people exploit gun violence for political gain, Obama exploits the illegal immigration problem for his agenda.; 11/22/14, 5:04 AM
Michael P said...: If he really believes that, my opinion of him will plummet. That argument suggests that the proper immigration policy is to let the entire world move here -- after all, if we want to accept largely unskilled third-world immigrants, we should also accept first-world immigrants -- with no consideration for assimilation or carrying capacity. It's almost a stereotype of the kind of bleeding-heat argument that conservatives lampoon.; 11/22/14, 5:17 AM
rhhardin said...: Third world people are responsible for fixing their own governments.

We have enough trouble with ours already.; 11/22/14, 5:42 AM
tim maguire said...: I agree with Michael--the problems with Somin's argument are many and deep and suggest an inferior reasoning ability. Starting with the senseless attempt at equivalence. We can't reform an illegitimate law oppressing our citizens until we save the lives of foreigners everywhere?; 11/22/14, 5:54 AM
The Drill SGT said...: The Prosecutorial discretion argument, which is basically an inadequate resources or rationing argument might be reasonably if and only if the Feds allowed cooperative law enforcement from stats. However, their position is that states can't act, even though the Feds don't have the resources...; 11/22/14, 6:30 AM
William said...: America has a long history of treating black criminal defendants unfairly, and especially so in racially charged cases. Obama should use the executive pardoning power to grant freedom to all black federal prisoners who have been found guilty of the rape or murder of a white victim. There have been just too many cases where black defendants have been inappropriately punished for such offenses. Such a sweeping amnesty will do much to restore racial harmony in America.; 11/22/14, 6:34 AM
Mid-Life Lawyer said...: Well call me Mr. Obvious but there's a glaring hole in the analogy - The college students are American citizens.; 11/22/14, 7:05 AM
PB said...: Somin moral argument could be extended to citizenship and property rights. Basically it leads to justification for the enforcement of no law.

Open immigration is incompatible with the modern welfare state, but here's the thing - over a long-enough time frame borders vanish, but democratically imposed socialism always fails.; 11/22/14, 7:09 AM
David said...: stlcdr said...
So, the argument is that committing a crime is morally justifiable to free oneself of poverty?

Depends on the crime, doesn't it? A government can define nearly anything as a crime. Civil Disobedience does not just involve protest movements of high principle and drama. It's an everyday occurrence in the realm of ordinary life. Emigration to avoid poverty or persecution is a long standing phenomenon of cross border Civil Disobedience. Think the Old Testament.; 11/22/14, 7:18 AM
chillblaine said...: "whose only violation of the law is fleeing poverty..."

It's not the fleeing from poverty that creates the violation.; 11/22/14, 7:27 AM
Tank said...: Helllllllooooooo.

We understand why "they" want to come here (despite this being a racist, sexist, homophobic kind of place LOL - damn, we're so bad half the world wants to live here).

But our elected officials are not elected to represent "them." They are elected to do what is in the best interest of current American Citizens. Whatever we decide we want regarding immigration, it should not be decided de facto by people "fleeing blah blah blah" and breaking into our country. We should decide it. And the decision should be based on what is good for us.

Is it good for Crack's friends (and every other person in the bottom third economically in this country, not to mention computer programmers and engineers) to have a flood of immigrants and work permiteers competing for the jobs that are available here? No it is not.

Instead of mandating minimum wages, cut down on the foreign competitors.; 11/22/14, 7:46 AM
B said...: If Obama really cares about people fleeing poverty and violence, then his executive order is really half-hearted and arbitrary.

If Obama cares really cares about young Hispanic voters, then his executive order targeting their immigrant parents and siblings make perfect sense.

Hey anchor babies, vote Democrat!; 11/22/14, 8:35 AM
retail lawyer said...: Oh Please . . . The Third World People are Third World People for a reason. The question is, do they bring that reason with them, and will they move the US in a Third World direction? Consider who they vote for, and that we now have a Third World President, and a complete Third World state in California.
And that whole line of reasoning is pretty insulting to Latin America, isn't it?; 11/22/14, 8:57 AM
Sebastian said...: Categorical exemption is the opposite of prosecutorial discretion.

". . . illegal immigrants violating the law to escape Third World conditions are considerably more deserving." Nice message to send to the other 5 billion people who might want to "escape" as well.

Interesting comment from a law professor. Last time I checked, immigration law does not provide for "escape from poverty" quasi-refugee status.

Either we have a republic in which our elected representatives make laws and an executive branch carries out those laws, or we don't. I guess Somin prefers that we don't.; 11/22/14, 9:26 AM
Fernandinande said...: Somin's position on immigration can be summed up as "White Man's Burden".; 11/22/14, 10:05 AM
chillblaine said...: The 'moral justification' argument is compelling, as if our citizens also have a moral obligation to help these people.

I believe our moral obligation is greater to our own citizens. Promote the general welfare. There are millions of black youths without work. Abolish the minimum wage.

Thou Shalt Not Murder. That seems like a decent enough moral obligation to ban abortion after twelve weeks.

This is not a moral act. It is a political one, calculated to turn Texas blue.; 11/22/14, 10:06 AM
Clayton Hennesey said...: When one is a tenured law professor like Ilya Somin operating in what can only be termed an orchid hothouse market, it's quite easy to make abstract arguments from personal moral sensibilities that affect African-American U. S. citizen drywall hangers operating in actual supply and demand markets, citizens who must now explain to their children that, now that their parents' lifetime wages have been halved, they, unfortunately, will no longer be able to become tenured law professors like Ilya Somin.

But I think Marie Antoinette said all this more succinctly.; 11/22/14, 11:03 AM
Balfegor said...: people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments

We're not getting floods of refugees from North Korea (GDP/capita ~600/yr) or India (GDP/capita ~$1,500/yr) here -- we're mostly getting people from Mexico (GDP/capita ~$10,000/yr). And of Mexican states, the states on the border with the US are some of the richest. On a purchasing power parity basis, those figures would be even higher. Nuevo Leon, for example, apparently had PPP GDP/capita of $27,000 in 2007 -- comparable to Spain or Portugal or even South Korea. We're simply not talking about people fleeing a country that, by world standards, could fairly be characterized as a disaster zone.

There's drug violence in Mexico, sure (and it spills over into the border zone in the US), but it's not exactly Pancho Villa running around in a sombrero shooting up banks and hijacking trains every day. And their government is terrible I'm sure but, you know, they elected it. Mexico isn't a dictatorship. It's not even one party rule under the PRI anymore.; 11/22/14, 11:17 AM
Anonymous said...: Michael P: That argument suggests that the proper immigration policy is to let the entire world move here...with no consideration for assimilation or carrying capacity.

Now children, it's not fair that some of you get to live in nice countries while some of you are stuck in not-so-nice. Even if you kids and your ancestors in nice countries made them that way yourselves, and you kids in the not-so-nice countries are responsible for trashing them yourselves*. So we'll make it that none of you get to live in a nice country! Fair is fair, children.

*In Open Borders Land, the state of a country has nothing whatever to do with its inhabitants. Some countries just happen to have rule-of-law and other nice things, entirely independently of the people who live there. Oh, this niceness may be the result of their "culture", but only an abstract sort of "culture", that doesn't require any sort of traditional transmission, and it has the magical property of being instantly transferred to anybody who manages to make his way from a not-so-nice country to a nice country.

Same in reverse for not-so-nice countries. So letting the billions of people who live in not-so-nice countries into nice countries shouldn't change a thing.; 11/22/14, 11:20 AM
Anonymous said...: Fernandinande: Somin's position on immigration can be summed up as "White Man's Burden".

To be precise, "Those White Men Further Down the Totem Pole Than I Am's Burden".; 11/22/14, 11:26 AM
gerry said...: Obama has abandoned the unions in favor of those who he wants to invite to parties.; 11/22/14, 12:29 PM
n.n said...: So, is he declaring Mexico, and other second and third-world nations failed states? Now what? Perhaps he would like to address causes rather than treat symptoms... in perpetuity.

Anyway, address the causes of mass emigration from Mexico, and other second and third-world nations. Address the causes of mass abortion in America and other first-world nations. It's for the children, right?; 11/22/14, 12:56 PM
Jupiter said...: My US citizenship is a valuable possession, which I inherited from my parents. If I could sell it, it would bring a hefty price. That is because it is a scarce good. If everyone on Earth were made a US citizen, there would be no value in that status whatsoever.

So the form of theft this particular tenured thief is arguing in favor of is the dilution of my birthright, as well as the expansion of the pool of those subsidized by my taxes. What is it about tenure, that makes theft so attractive?

I would propose that we make citizenship transferable. Then Mr Somin can sell -- or donate -- his own citizenship to whomever he feels has greater need of it, and leave mine alone. Of course, he will then have to leave the country, since he will no longer be a citizen. That is a feature, not a bug.; 11/22/14, 12:57 PM
mccullough said...: the rule of law is a concept to induce the gullible into playing by the rules while others do what they want.

There's a great part in the Godfather when Vito Corleone explains this.

The easiest thing in the world is to cheat on your taxes. Start there.

Somin is a guy whose livelihood depends on rubes taking out federal loans most will never afford to pay back. He counts on the gullible for his livelihood. Don't bust your ass to pay back those loans. They can't put you in jail for not paying. Let the government deal with the loss.; 11/22/14, 2:53 PM
sean said...: Yeah, Ilya Somin is one of those old white guys who is always yammering about Communism. (In fact, he promotes remembrance of the victims of Communism.) It's symptomatic of Prof. Althouse's hypocrisy and narcissism that she quotes him when he agrees with her and refuses utterly to engage with her when he says something that might challenge her preconceptions. That's one reason why I don't take her seriously, S&C alum though she be.; 11/22/14, 10:21 PM
furious_a said...: Think the Old Testament.

The immigrant Israelites put the resident Canaanites to the sword.; 11/22/14, 11:48 PM
furious_a said...: Somin is saying that we should become the World's Nanny instead of the World's Policeman.; 11/22/14, 11:51 PM
Anonymous said...: Right, Ilya, and all those poor Russian hackers. How can they live if they don't rob Americans. it's totally unjustified for us to impose our laws on theft against those poor people.

Bullshit.

Fine, you don't like the law. Tough. Work to change it in an honest and democratic manner.

What's that? You can't get the law changed in an honest and democratic manner? Then it shouldn't be changed.

It's called democracy, and the rule of law. And if you dont' value both, you have nothing of value to offer.; 11/23/14, 2:08 AM
Anonymous said...: Oh, and the answer is that "large scale use of prosecutorial 'discretion'" is never appropriate.; 11/23/14, 2:09 AM
Naut Right said...: Ilya Somin was drawn and quartered in the comments section of a Reason link to his article.
Is it possible for congress to legislate conditions of the defendant that would trigger discretion? They could have. That is not the job of the executive to do on an en masse basis. This is where discretion crosses faithful execution.; 11/23/14, 7:45 PM