If federal law enforcement officers apprehended a person who had been using a false Social Security Number, a federal prosecutor with a heavy caseload dominated by more serious crimes might decide not to indict the person. Whatever its merits, that would be an act of prosecutorial discretion.
But what if the prosecutor were to tell this user of a false Social Security Number: It is okay for you to continue using that false Social Security Number tomorrow. In fact, you may do so with impunity for the next three years.
Would that be an act of prosecutorial discretion? Or would it effectively make the prosecutor a co-conspirator with someone using a false Social Security Number?
In the case of Texas v. the United States, U.S. District Judge Andrew S. Hanen issued an injunction on Monday temporarily stopping President Obama’s unilateral action to allow illegal aliens to stay in the United States, get work authorizations, and obtain Social Security Numbers.
In his decision, Judge Hanen clearly and forcefully explained how the administration’s new immigration policy is not an act of prosecutorial discretion.