President Obama this week announced that anyone who 1) has been in the country for at least five years, 2) has a child who's a citizen or a permanent legal resident of the United States, and who 3) can pass a criminal background check, will not be deported even though he or she is in the country illegally. Is this, as the president claims, a legitimate exercise of 'prosecutorial discretion' or is he acting illegally or, at least, improperly?
Prosecutors at all levels, whether presidents enforcing immigration law or local officials enforcing criminal law, are given a lot of discretion as to how to enforce these laws.
For instance, suppose you were caught stealing a loaf of bread but had no criminal record and were stealing the bread to feed your family. Chances are, you would not be prosecuted and would be let go with a warning, an exercise of prosecutorial discretion which most would feel to be appropriate.
On the other hand, suppose the D.A. were to decide that bread is so important that no one should ever be prosecuted for stealing bread, that the 'bakery system' is broken, and that until the legislature fixes it by giving everyone free bread or whatever, he's not going to prosecute anyone for stealing bread. Would this also be a proper exercise of prosecutorial discretion?
Immigration law mandates that if you're in this country illegally, then you're in this country illegally. Even if you have children who are legal and even if you've been here for some specified amount of time and even though you may indeed be a very fine fellow, you're still here illegally.
Congress has the right and the duty to pass laws and the president has the constitutional obligation to see that they are 'faithfully executed.' He can try and have them changed but, in the meantime, cannot behave as though they were already what he would have liked them to be. That's not 'discretion.' That's 'nullification' and is a power possessed by juries, not by presidents.