No matter your opinion on Holder ...

Discussion in 'Too Hot for Swamp Gas' started by wgbgator, Aug 29, 2013.

  1. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    Good stuff. I suppose enforcing environmental regulation is similar.

    All that said, I would prefer that the laws be changed, rather than arbitrary application of enforcement.
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  2. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    Sure, we should never have been here in the first place. But the government is already in the way (and has been for decades), and there's lots of entrenched policy/opinion/bureacracy, so overturning a long standing federal policy isnt going to happen unless public opinion reaches a near consensus in support, or at the very least, a solid majority. Otherwise, your open to cries of "federal activism" or "overreach." I think were getting there as far as opinion, but a gradual approach may be what is warranted here, despite being a total cowardly, wiener move as far as political courage is concerned.
  3. GatorBen
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    GatorBen Well-Known Member

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    The enforcement aspect there is similar.

    As you walk back towards the regulatory sphere you start to get the blurred lines as to where executive discretion ends though. It's not a widely explored area of law, but it appears to be one that is arising more.

    The EPA v. Massachussetts Supreme Court decision, for example, holds in the rulemaking context that the EPA lacks the discretion to decline, for policy reasons that aren't enumerated by the statute, to regulate conduct that falls within the confines of Congress's acts that delegate regulatory responsibility to an agency. The followup DC Circuit decisions have distinguished between the EPA's duty to regulate which the Court found to exist and a duty to prosecute in the enforcement context.

    The Yucca Mountain DC Circuit decision from last week similarly distinguishes that while the Executive has discretion to decline to prosecute, it lacks discretion to decline to engage in a licensing approval process where Congress has told it to.

    Essentially the distinction boils down to whether a particular action is an enforcement action or not. It also raises interesting questions about whether the Executive can decline to seek civil remedies, which aren't technically a criminal prosecution, but which look a lot like one in many ways.

    Kavanaugh is writing concurrences in a lot of administrative cases that tee these issues up somewhat squarely, so perhaps at some point the Court will take the invitation to clarify some of the interesting issues about how far prosecutorial discretion extends into the regulatory framework.
  4. asuragator
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    asuragator Well-Known Member

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    The law does not require them to. That is the very essence of discretion.

    The next person sitting atop the DOJ will have the discretion of which crimes to prosecute. This is nothing new.

    Of course there is a desire for consistency and prudence, but above all fairness, in the distribution of justice, but you keep claiming the law requires them to enforce something. Well no, it doesn't. And your flippant use of "leading from behind" is really kind of ironic given the fact that the current administration is the one embarking on a plan to change the way the decades long drug war has been prosecuted...pretty much unabated since the 1980s.

    There is always a danger of arbitrary application, but then again, arbitrary application of enforcement has existed throughout when it comes to criminal prosecutions.
  5. Gatorrick22
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    Gatorrick22 Well-Known Member

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    So our laws are "discretionary" laws? :roll:

    Sounds like a living breathing Constitution. :laugh:
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  6. asuragator
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    asuragator Well-Known Member

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    It's simply the nature of the beast. We couldn't have full prosecution of the laws even if we wanted it, and really if you think about we absolutely don't want that.

    We also want and to some degree need consistency, but most importantly we need fairness in the prosecution of the law. Officials change and their focus changes as well. Where to put the limited resources to achieve just ends while upholding their oaths will ultimately lead to some/many crimes being underprosecuted/not investigated, while others being prosecuted as much as possible.
  7. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    Once again you fail to see the difference in an overall, overarching policy about the enforcement of a particular set of laws concerning an activity and individual, prosecutorial decisions.

    This is akin to the Obama administration saying they won't enforce immigration laws...oh....they did that too. Or investigating and upholding voting poll laws...oh...they did that too. Or refusing to even acknowledge that there can be hate crimes against white people...oh...they did that too.

    What separates this Administration from others is its breathtaking over reach and disregard for the balance of powers. Plato was right. So, in a sense I guess you are correct that Obama is blazing new trials there.
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  8. candymanfromgc
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    candymanfromgc Well-Known Member

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    You like weed, so Holder is now your man. Truth is, this is just another example in selective prosecution. But what would you expect from a racist who does not like to see black drug dealers put in prison. You reap what you sow.
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  9. fastsix
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    fastsix Well-Known Member

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    You realize that states have been breaking the federal laws against marijuana since 1996 right? For all intents and purposes marijuana has been allowed in several states, long before Colorado and Washington made it legal. Blaming Holder for this is ridiculous.
  10. Gatorrick22
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    Gatorrick22 Well-Known Member

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    What's Holder's/obama's excuse not to uphold immigration laws?
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