After nearly a one year writing hiatus, we welcome Mr. Dwyer back to the pages of the Federal Observer. (Ed.)
“That amnesty for illegal immigrants should allow them to stay in the U.S. indefinitely, just like the amnesty for thieves would allow them to keep the property they stole.” – Mark Andrew Dwyer, Idiot’s Guide to Illegal Immigration
A few days ago, June 15, 2012, President Obama announced during a press conference in Rose Garden that he had instructed the Department of Homeland Security to not deport the illegal aliens who could have benefited from the so-called “DREAM Act” rejected by the U.S. Congress earlier this year.
My jaw dropped. Here comes the administration that in its ostensible zeal to enforce the border and the immigration law had claimed, and repeatedly so, the federal supremacy (see the FURTHER READINGS section for more information) over the rights of the states to protect the citizens from the million-man invasion (euphemistically referred to as the “demographic change”) of Mexican violators of the U.S. border, and yet they are so fast to declare the dereliction of their sworn duty that they so vigorously defended as their monopoly just a few months ago. As if the role of the Executive Branch of our government were to guard the interest of Mexican nationals (in the name of accommodating the supposedly inevitable “demographic change”) against any infringements, actual and hypothetical, by the American People and the Legislative Branch that the People have elected.
But my jaw dropped even more when I spotted the new fallacy that President Obama’s apologizers, joined by the Mexican invaders’ lobby, pulled out in their never-ending effort to shield him from criticism for his executive faults: the “prosecutorial discretion” fallacy. They stipulated that the Executive Branch, the prerogatives of which included prosecution of violations of the federal statue, had a discretion which cases to prosecute and which not to, similarly to the discretion of district attorneys that might decide against pursuing criminal charges that might be difficult to prove in the court of law, or when the damages which the violations in question inflicted to the society were negligible. From that they fallaciously concluded that President Obama had the right to declare any portion of the federal law as unenforced and to protect the perpetrators from its enforcement, in addition to not prosecuting them for their breaking of it, despite the fact that there is nothing in the Constitution that would authorize the president to instruct his law enforcement agencies to not enforce the law.
The “prosecutorial discretion” fallacy, as described above, may seem a logical argument to some but in fact, as it is the case of all other fallacies, it is an instance of invalid inference. It smuggled into the reasoning process a deceitful assertion that enforcing the law and prosecution of its violators are the same thing, which they are not. Here is an example that illustrates the difference between the two.
Suppose that someone stole your bike from the driveway in front of your home, and that you saw who did it. You called police expecting them to retrieve your property from the thief and to file criminal charges against him. Yet the district attorney, you are told, has used his prosecutorial discretion to not prosecute. As a result, you are also told, the thief is now officially allowed to keep the property he stole form you, and you have no right to reclaim it.
Only a moron or a communist sympathizer would accept such a justification for de facto transferring the ownership of your bike to the thief as valid. After all, the mere fact that police may have not had enough resources or will to chase all thieves should not make a theft a lawful act. But how could they possible arrive at such an absurd conclusion?
The retrieval of your stolen bike belongs to the category of enforcement of property rights, while the prosecution of the thief belongs to the category of imposition of punishment for violation of these rights. There is a subtle but essential difference between these two overlapping but not equal categories: the former serves to protect the owners while the latter serves to punish the thieves. In particular, you as the owner, may enforce your property rights (by, for instance, physically resisting any attempt to preempt your property from you) but you must not punish anyone for violations of your rights. That distinction between what you may and must not do when someone steals from you would not have been possible if the enforcement (that you may do) equaled to imposition of punishment (that you must not). What the prosecutor and the police did in the above example, was that they wrongly equated these two different categories, arriving at their fallacious conclusion that a lack of punishment constitutes a valid excuse to not enforce. (Despite repeated claims by various pro-illegal immigration groups, the U.S. Supreme Court did not rule that every enforcement agency has a discretion to not enforce any law; see the comment on Heckler v. Chaney in FURTHER READINGS section.)
Even assuming that the district attorney had the discretion to not prosecute a thief, which assumption is likely false in your case, it does not follow that his law enforcement agency has a discretion to tolerate the theft, never mind any discretion to issue any assurances to the thieves that they shall not be caught after the theft or that they can safely keep the property they stole. Moreover, for the district attorney to exercise his prosecutorial discretion to not prosecute, the perpetrator must have stopped stealing and returned the all proceeds of the theft or otherwise repaired all the damages he inflicted to others with his criminal act. It is a clear fallacy to derive a discretion to not enforce the property rights from the discretion to not prosecute (and, therefore, to not punish) the thieves.
In the case of illegal aliens, the deportation of an illegal alien is not a penalty but a restitution of the status quo ante, just like returning of the stolen property is not a punishment (the imprisonment is). If the Department of Justice or the Department of Homeland Security decided to not prosecute certain violators of the immigration law, it would only mean that the said violators were not to be fined or imprisoned for their lawbreaking, provided that they actually stopped breaking the law and returned the proceeds of their crimes, that is, they left the U.S. that they were illegally present in. It does not imply that the law itself may be lawfully ignored (even if with respect only to certain class of individuals) or that the authorities are allowed to declare that they will tolerate breaking it and let the perpetrators “keep the property they stole” (figuratively speaking).
It is one thing to not to punish the border jumpers for their illegal presence in the U.S., but it is quite another thing to willfully allow that illegal presence to continue, for the benefit of the illegal aliens and the detriment of the majority of the American People and would-be immigrants patiently waiting in line for their turn to lawfully immigrate into the U.S. According to the immigration law, all illegal aliens are subject to deportation, regardless of whether they are actually punished (with a fine or imprisonment) in the process or not. To grant a summarily exemption from the immigration law is an outrageous act that signals hostility of the president and his administration (the previous president and his administration were not much better in this respect; see Election Year Sellout in FURTHER READINGS section) towards the law that they are supposed to uphold and enforce, and towards the American people that the law is supposed to protect. And the provision that only those who would have benefited from the so-called “DREAM Act” are exempt from the prosecution is in itself an insult to equal justice.
But the absurdity resulting from the “prosecutorial discretion” fallacy does not end there.
Although President Obama and his cabinet often claimed that due to the “limited resources” they cannot afford deporting the “law abiding illegal aliens” (which term is an obvious oxymoron) and must focus on more serious national threats, instead, his Attorney General Eric Holder did not hesitate suing the State of Arizona for the law it passed in order to protect itself from the invasion of and occupation by Mexican illegal aliens (to which traitors in the so-called “mainstream” media refer to as the “demographic change”). According to the arguments presented by the Solicitor General on behalf of the plaintiff (the Federal Government, that is) in front of the Supreme Court earlier this year, it was not an alleged racism against Mexicans but the presumption of federal supremacy in immigration matters that was the legal basis for the administration to sue a state that attempted to regulate matters that, arguably, were the federal monopoly. This time, no concern was given to the “limited resources” argument or to the fact that there were more serious national threats than the Arizona SB 1070 anti-illegal immigration law (that, perhaps, is a threat to Mexican expansionism, a.k.a. “demographic change”, but not to the American people and lawful residents). The Attorney General used the full power of his mighty Department of Justice to crack on a state that dared to exercise its 10th Amendment (see its text in FURTHER READINGS section) rights.
To illustrate how absurd the above arrangement is, let us revisit the bike stealing example.
Suppose that after the law enforcement authorities openly refused to protect you from falling a victim of theft, you begun watching your new bike that you left on your driveway. The next time the thief showed up and tried to steal it, you went out and confronted him. To your greatest surprise, police arrived in no time, but not to catch the thief, but to arrest you for “taking the law in your own hands.” They said they had the exclusive prerogative for protection of you and your property, not withstanding their prior refusal to exercise that prerogative, and that you were prohibited from infringing on their legal monopoly in this respect. The district attorney told you that you were going to be prosecuted to the fullest extend of the law for your “vigilantism”. Somehow, his prosecutorial discretion to not prosecute that he so generously used towards the thief did not apply to you.
Regrettably, that is exactly what the president and his administration are doing. It rises the question whose side, American or Mexican, are they on. And there is a good reason for them to err on the side of Mexicans; judging from the current rapid growth of the population of Mexican ancestry in the U.S., that is the result of invasion of Mexicans augmented with their high reproductive rate, and a strong tendency of that population to lean towards the Left, the prez and his administration may be paving the way for future political victories of their party by surrendering to the Mexican invasion (to which they euphemistically refer to as the “demographic change”) and pandering to the Mexican lobby. I can only speculate whether they actually do so or not, but if they do then it would constitute a clear case of treason, and no deceitful use of the “prosecutorial discretion” fallacy can change that.
~ CONCLUSIONS ~
The stubborn refusal of the Executive Branch of the Federal Government to duly enforce the immigration law, as well as they absurd stance that if they chose to not enforce it then the states must not defend themselves on their own, either, is arguably the most compelling argument for returning the immigration matters, other than the uniform rule of naturalization, to where they were some eight decades ago before the federal usurpation took place: to the state jurisdictions, that is. For otherwise, we will find ourselves in the regrettable situation of a victimized owner who is not allowed to defend his property from theft, because its a monopoly of a law enforcement agency, but the law enforcement agency won’t do anything to deter the theft or prosecute the thief out of its “prosecutorial discretion”.
But it is counter-productive to argue with those who resort to fallacious reasoning while defending their political agenda. In particular, it seems hopeless to make those who perpetuate the “prosecutorial discretion” fallacy withdraw their absurd conclusions. Their end is to make political gains and not to find out what is true and what is not. All the arguments that those individuals use are merely means to that end, which makes them unlikely to surrender to facts and reason.
So, the best point that you can make in the never-ending dispute with those fallacionists is to go to your voting booth on November 12 this year, and vote them out from whatever office they may hold and whatever political power they may have. In order to put America on the right track, again, we need a wall of separation between them and the government. Only you, the voter, can build that wall.
~ FURTHER READING ~
Deportation [of an illegal alien] Is Not a Penalty
Argues that deportation of an illegal entrant is not a penalty as repossession of stolen property from a thief or a bank robber is not – it is a restitution. Likewise, granting a residency permit to an illegal alien is not just an amnesty – it goes far beyond that, as granting a thief or a bank robber the right to the property he stole would go beyond amnesty (in the correct meaning of this word) for common criminals.
Federal “Supremacy” Or Usurpation?
Indicates misinterpretation of the Constitution and its Amendments while deriving the federal power to not enforce (and the power to obstruct an enforcement) from the power to enforce the immigration laws, endorsement of unconstitutional usurpation of federal powers, and confusing criminal law and its doctrines with civil rights of various classes of persons outside of the criminal cases.
Heckler v. Chaney – 470 U.S. 821 (1985)
This is the U.S. Supreme Court case that various pro-illegal immigration groups wrongly quote as a legal basis for the administration to not enforce the immigration law. The case, however, has nothing to do with immigration. In it, the Court decided that prison inmates who were convicted of capital offenses and sentenced to death by lethal injection of drugs cannot sue the Federal Drug Administration for not enforcing a ban on substances used in the lethal injection cocktail.
Debunks the myth that the deportation of “young people brought to the country illegally through no fault of their own” would equal to punishing them for their parents’ “mistake”. In fact, these illegal-alien children were undeservedly awarded, however temporarily, the privilege of enjoying American good life while millions of children of would-be immigrants patiently wait, often in poverty, for their turn of lawfully immigrating into the U.S.
Idiot’s Guide to Illegal Immigration
The quote at the beginning of this article comes from the above column.
Election Year Sellout
Do not be under an impression that President Obama is the only one whom I criticized for his pandering to Mexicans and their lobby. The above column contains my sharp criticism of President Bush for his pandering to the same group.
Anatomy of Treason
Argues that U.S. Senate’s capitulation in May 2006 to demands of millions of illegal aliens is a result and a necessary consequence of a half-century old, well concerted effort to disable healthy mechanisms of American national self-preservation and survival. Sadly, the effort is succeeding because the federal government that, according to the framers of the Constitution, was supposed to fear the American People has developed a pathological tendency to fear any people that are physically present in the U.S.
Amendment 10 of the Constitution of the U.S.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
June 24, 2012
~ The Author ~
Mr. Dwyer has been a continuing contributor to the Federal Observer. Mark Andrew Dwyer’s commentaries (updated frequently) can be found here. Send your comments to firstname.lastname@example.org.