The following comment was submitted in response to a blog written by my colleague Roger Algase regarding the Bush administration's exercise of prosecutorial discretion.

I was an immigration officer for 39 years, including 29 years in upper management. I saw many memos on the use of prosecutorial discretion over the years. This is used by all prosecutors, whether they be at the local, state, or federal level. For example, when I was an INS Criminal Investigator in Baltimore (1975-1980), the U.S. Attorney for Maryland would not prosecute for theft relating to international shipping unless it was greater than $30,000. In immigration cases, most U.S. Attorneys would not prosecute for entering the country after deportation unless it was a second or third offense. As mentioned above, the reason is simple, they had too many cases and had to be selective.

Prosecutorial discretion was also used by law enforcement officers in the field. We didn't arrest every person who broke the law. If an illegal alien was married to an American citizen and had American children, we often advised the American spouse to file a petition instead of making an arrest. Why not, we would never succeed in deporting this person anyway.

Memos from top immigration officials often spelled out the policies different administrations wanted to use relating to prosecutorial discretion. The memo you cited was typical and not unusual.

Prosecutorial discretion could only be used in cases related to violations of the law. It could not be used when we made decisions on immigration benefits.

There is no question that President Obama has the Constitutional authority to favorably exercise discretion by expanding current policies that provide deportation relief on a case-by-case basis. The rhetorical question is why has President Obama been allowed to lie about his authority for 5.5 years, and more importantly, why does it take an election for him to exercise it?