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Gowdy: Prosecutorial Discretion Not a Synonym for Anarchy

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Wednesday at the House Judiciary Committee hearing on President Barack Obama’s executive action on immigration, Rep. Trey Gowdy (R-SC) gave a rousing opening statement condemning President Obama for his executive order amnesty.

Partial transcript as follows:

The thread that holds the tapestry of our country together is respect for and adherence to the rule of law. The law is the greatest unifying and greatest equalizing force that we have in our culture. The law is what makes the richest person drive the precise same speed limit as the poorest person. The law is what makes the richest person in this country pay his or her taxes on precisely the same day as the poorest person in this country. The law, Mr. Chairman, is symbolized by a blindfolded woman holding a set of scales and a sword. The law is both a shield and a sword, and it is the foundation upon which this republic stands.

We think so highly of the law, Mr. Chairman, that in the oath of citizenship administered to those who pledge allegiance to this country, to their new country, it makes six different references to the law. So attempts to undermine the law via executive fiat, regardless of motivation, are detrimental to the foundation of a democracy.

President Obama after the November midterm elections, I hasten to add, announced one of the largest extra constitutional acts ever by a chief executive, he declared unilaterally almost five million undocumented aliens would receive deferred action under some newfangled definition of prosecutorial discretion. Moreover, in addition to using prosecutorial discretion as a license to rewrite the law, he also conferred benefits on those same people.

You may like the policy, you may wish the policy were the law, but one person does not make law in a republic. If you enjoy a single person making law, you should investigate living in in another country, because our framers did not give us nor have generations of our fellow citizens fought and served and sacrificed for a single person to make law in a unilateral way. So removing consequences for breaking the law is one thing. Bestowing benefits such as work authorization and immigration benefits is another.

The president himself recognizes his own inability to do this, Mr. Chairman. More than 20 separate times he said he lacked the power to do what he ultimately did. In 2011 he said this, and I quote, ‘The notion that I could just suspend deportation through executive order, that’s just not the case.’ He told us time and time again, Mr. Chairman, that he was not a king. His position may have changed. But the constitution has not. And that document is clear and it is time tested and it is true and it says the congress passes laws and it is the responsibility of the chief executive to take care that those laws are faithfully enforced.

His position may have changed. But the constitution has not. Prosecutorial discretion is real and actually valid, Mr. Chairman, but it is not a synonym for anarchy. As a U.S. District court judge Andrew Hanen wrote, DHS does have the discretion in the manner it chooses to express the will of congress. But it can not ignore congress or actively thwart them. The constitution gives the president a lot of power, Mr. Chairman. He’s the commander in chief, he nominates Supreme Court Justice, he can veto legislation for any reason, or no reason. He can fail to defend the constitutionality of a law. He has the power of pardon. He has a lot of power, Mr. Chairman. But what he cannot do is make law by himself. That is the responsibility of the congress.

And if this president’s unilateral extra constitutional  acts are not stopped, the future president, you may rest assured, will expand that power of the executive branch thereby threatening the constitutional equilibrium. The argument the previous administrations have acted outside constitutional boundaries holds no merit with me. The fact that other people make mistakes is not a license for this executive to do the same thing. Mr. President, in conclusion, we live in a country where process matters. The end does not justify the means. No matter how good the intentions.

When a police officer fails to check the right box on an application for a search warrant, the fruits of that search warrant are suppressed. When a police officer, even though he has the right suspect for the right crime, but he just fails to include one small part of those prophylactic Miranda warnings, what happens? The statement is suppressed. Even though you have the right person. Even though you have the right crime. Because we view process over the end. I’m going to say this and I’ll finish.

I’m going to say this to those who benefit from the president’s policies. You may be willing to allow the end to just fight means in this case. You may well like the fact that the president has abused prosecutorial discretion and conferred benefits in an unprecedented way. You may benefit from the president’s failure to enforce the law today, but I’ll make you this promise. There will come a day where you will cry out for the enforcement of the law. There will come a day where you long for the law to be the foundation of this republic. So you be careful what you do with the law today because if you weaken it today, you weaken it forever. With that I yield back.

Follow Pam Key on Twitter @pamkeyNEN


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