The House of Representatives today passed HR 4138, the ENFORCE Act, by a vote of 233 to 181. This bill would give either chamber of Congress standing to bring a civil action in U.S. district court alleging that “President, the head of any department or agency of the United States, or any other officer or employee of the United States” has failed to enforce the law pursuant to the Constitution. The court’s decision only would be reviewable in a direct appeal to the U.S. Supreme Court. It’s unlikely this bill would pass the Senate or be signed into law by the President.
In the committee report about why the House should pass the bill, it specifically cites the administration’s use of prosecutorial discretion for young undocumented immigrants—Deferred Action for Childhood Arrivals—and the “unlawful extension of parole in place.” In November 2013, the Obama administration issued a new policy allowing undocumented spouses, children, and parents of active military troops and veterans to be eligible for “parole in place,” meaning they can stay in the United States and “many can proceed with applications for legal residency,” according to The New York Times.
However, the authority to exercise discretion has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts.