Bryan Caplan  

A Nice Quote for Obama's Immigration Address

The Bottom Line on DACA... I Keep Returning to This Book....
"I want to ask a question. What is a loophole? If the law does not punish a definite action or does not tax a definite thing, this is not a loophole. It is simply the law. Great Britain does not punish gambling. This is not a loophole; it is a British law. The income-tax exemptions in our income tax are not loopholes. The gentleman who complained about loopholes in our income tax - he did not refer to the exemptions - implicitly starts from the assumption that all income over fifteen or twenty thousand dollars ought to be confiscated and calls therefore a loophole the fact that his ideal is not yet attained. Let us be grateful for the fact that there are still such things as those the honorable gentleman calls loopholes. Thanks to these loopholes this country is still a free country and its workers are not yet reduced to the status and the distress of their Russian colleagues."

--Ludwig von Mises, Defense, Controls, and Inflation

The "loophole" in question, of course, is that prosecutors have essentially absolute discretion to not enforce the law.

Comments and Sharing

COMMENTS (17 to date)
Steve Waldman writes:

I'm not sure absolute discretion is quite the defense from tyranny that legal incapacity would be... Laws consistently enforced strike me as a better bet for freedom, since if inconsistently enforced unjust laws will be enforced least on those with the most capacity to change them, and so persist.

On the bright side, it seems Obama plans to replace absolute discretion with an executive policy of nonprosecution, which is the next best thing to legal incapacity. Mises might applaud Obama for the loophole he's creating by rescinding discretion, rather than the legal system for the discretion itself.

Handle writes:

Second Steve Waldman in regards to Mises' and Hayek's likely views on 'discretion'. The very opposite of the rule of equal justice under law is a state of affairs in which every petty jurisdiction's officials can decide what 'laws' to enforce, when they want, and against whomever they want.

That is, one of the most commonly written phrases in judicial or appellate review is 'abuse of discretion' for good reason, (and, naturally, often the assertion of an abuse on a lower level is actually nothing more than a results-oriented abuse at the current level).

It's not uncommon for well connected lawyers to know someone working in the local prosecutor's office and to be able to use their influence to make certain misdemeanor cases go away for friends, and especially their kids. Should we bite the bullet and embrace that situation and applaud that privilege for those that have it and tell those less fortunate kids that don't, "Well, tough luck that you didn't have the right father?"

And anyway, if you're going to call 'nearly unlimited discretion' a 'law', then keep in mind laws can be changed and certainly will be once discretion is abused.

Federal judges, for instance, used to have nearly unlimited discretion to set whatever sentences they want, with barely any guidelines. Then a large enough number of them started consistently issuing sentences far less than the recent norm, and in an era of exploding crime rates.

Finally congress had had enough, radically reigned in the judges, and today, despite the Apprendi, Blakely and Booker line of cases, mandatory minimums are a practical reality in District Courts where they are almost always issued and then upheld on appeal.

If one imagines unlimited public support for unlimited prosecutorial discretion persisting even after it crosses this Rubicon without a reaction just like that, then I think one is imagining that one can play with fire and not get burned.

Jody writes:

So under your value system, open borders trumps the rule of law and limits on executive power.

Forgive me if I don't think that combination will lead to a stable, successful society.

Just as a fun example of where absolute prosecutorial discretion leads, suppose the President gets in a spat with the Supreme Court and then announces that the government will not prosecute crimes committed against judges as long as the spat continues.

You're endorsing a very dangerous and short-sighted precedent.

Tracy W writes:

The best definition of "loophole" I know of is something like "a way of doing something legally that the law, at first glance, bans."

So for example, apparently the EU treaties establishing the eurozone bans any country from living once joined. But some bright spark pointed out that it says nothing about taking a temporary leave of absence, so Greece could have ducked out, for, say a couple of hundred years.
I am not an expert on EU law, but, if that's true, that's the case of a loophole.

EB writes:

Bryan, please ask a lawyer about the meaning of prosecutorial discretion. My understanding is that it allows an executive officer to decline prosecution on a case-by-case basis when there's insufficient evidence or resources to do so. Anyway, thanks for making clear that you are willing to sacrifice the rule of law to get what you want. I hope most Americans are not willing to do it.

AS writes:

A tax code with too many exemptions increases the cost of compliance, a deadweight loss. I think some 2% of gdp is wasted on compliance. Then there's the distortions introduced by incentivizing arbitrary behavior. Many exemptions exist to reward rent-seeking lobbyists, another deadweight loss.

Princess Stargirl writes:

The Black community has suffered dearly for decades under the war on drugs. Yet the only drug a majority of Black Americans want to legalize is Pot. I too hope bad laws aren't enforced. Commentators are arguing that if laws were consistently enforced there would be too much public outcry and those laws would be repealed or limited. But I think this is too speculative.

The reason that life is enjoyable is that most laws are not enforced. Both in terms of the legal system and things like guidelines for workers at private companies or parent's rules for their children. Most people are naturally tyrants, desiring to micro-manage other people's lives. The only effective checks on their tyranny is laziness and self interest.

Peter H writes:


The problem with the analogy to criminal prosecutorial discretion is that if this were a criminal matter, there would be zero question of the President's authority. The President can, through the pardon power, absolutely absolve anyone he wants of criminal wrongdoing.

What Pres. Obama is doing is far more along the lines of a mass pardon than use of prosecutorial discretion. Fortunately for him, pardons are where the power of the President are at their zenith.

JKB writes:

Of course, prosecutorial discretion is transitory and can be reversed by the original prosecutor or his replacement up to the statute of limitations for the alleged crime. It is also, a matter ripe for corruption as we saw in DC when the prosecutor declined to prosecute his friend David Gregory for willfully violating DC gun laws on national television but eagerly pursued an individual who made a wrong turn and ended up getting stopped in DC before he could return to Virginia where his firearm was legal. A bridge to far, so to speak.

But now, jury nullification, that is an absolute walk.

But abuse of prosecutorial discretion is not absolute as the prosecutor can be held accountable directly where he is elected or the elected official of appoints the prosecutor (or their party) can be held accountable.

But most of this is academic for the immigration abuse coming as most of those "prosecutions" are administrative and under the control of the executive. On the other hand, the executive cannot unilaterally give these illegal immigrants anything other than a temporary reprieve from the fear of prosecution. Obama may be beyond voter accountability but the Democrat party is not.

EB writes:

Peter H,

Thanks. You're right about the pardon power as explained in!/articles/2/essays/89/pardon-power

It's a different argument than Bryan's.

Yancey Ward writes:


If all Obama does is institute a blanket order based on prosecutorial discretion, then I would tend to agree with you. However, if his order is such that it attempts to tie down future executives by making this use of discretion irreversible, then he should be impeached.

The things to look for are these- with the amnesty, will he push the subjects of the order into permanent residency (green cards) and citizenship path? If so, then he is making his own law and should be removed from office. If all his order does is issue temporary work permits and eliminates deportation proceedings but does not lead to green cards and citizenship, then all of these are reversible by the next executive.

MG writes:

Have you ever stopped to think that the kind of Executive Authority that can most expediently grant your wishes of open borders, through fiat, is the same Authority that could most expeditiously deprive you of the other liberties which I am sure you cherish.

What about the Article 2, Section 3 requirement that the President "shall take Care that the Laws be faithfully executed"? Obviously this clause co-exists with the Pardon power, and the need for an executive to prioritize enforcement given limited resources. But there must be at least some cases of the Executive selectively enforcing laws that cross the line of "faithfulness." Could a President effectively repeal the capital gains tax by announcing a policy of not prosecuting people who didn't pay it?

(Is Obama's executive action on immigration like this case? Not sure--it depends on specifically what the law is and exactly what he's proposing)

Much as I would love to see open borders and reduced capital gains taxes, there is an independent value of the Rule of Law. Whether you're libertarian, socialist, conservative, or liberal, you have to live with the reality of a society where many people don't agree with you about many things. Shared values like the Constitution and the separation powers are part of what allows us to have (relative) peace despite the diversity of views.

Phil writes:

Discretion is vital in the enforcement of laws. If there is to be no discretion, how many police officers must we hire to ticket every driver who exceeds the speed limit and rolls through a stop sign? How many IRS agents must be hired to validate every claimed tax deduction? How many city inspectors to ensure hairdressers have a license or food is properly cooked? A degree of reasonable discretion is practically necessary and prudent public policy.

So, there is no clearly articulable bright line rule. Law enforcement has always been a question of shades of grey. Whether one thinks the President's actions are permissible or not is a function of how dark they believe the color grey is.

ColoComment writes:

A former prosecutor explains "prosecutorial discretion."

Nathan W writes:

What about the kind of loophole where rich people write off thousand dollar dinners as a business expense but when the "poor" guy goes to the bar (probably at least as much to meet people as to drink) we decry his irresponsibility, and puritan types will even suggest that he would be better if he were cut off from work or other access to money, for his own good, so he cannot afford to damage himself by going to the bar to drink some beers and meet people/friends.

Taxpayer subsidies via write-offs of five-star accommodation, food and transportation in a context where many Americans struggle to obtain something approaching the two-star version is an affront to common decency and fairness, and I very much would consider this to be a lifestyle-facilitating loophole far more so than a simple deduction.

If it that important for Mr CEO to get the golden treatment, then shareholders can pay for it out of their own pockets. Taxpayers should have nothing to do with these implicit subsidies for five star living. Per person, per meal and per day caps for any way of rendering food, accommodation, transportation and training costs would be a simple solution. They would have all the freedom to do as they please, just so long as they are willing to pay the very same taxes as everyone else does before taking themselves and acquaintances out to the finest dinner in town.

I propose nothing, but that the system be designed in a way that the rich man will not so often pay a lower after-tax cost than the poor man does to go to a fine restaurant, hotel, etc.

Sam Haysom writes:

For the various commenters here trying to obscure the issue by oscillating between pardon and prosecutorial discretion, we've done this before you can't offer blanket pardons to people for crimes they have not been convicted for. If we are going to all of a sudden say presidents can then we need to give Nixon his lost two years back.

Let Holder round up, detain, and then thrown the book at these "2 no 3 no 5 no 7 million you know what does it really matter" illegal immigrants then maybe, maybe you'd have a highly tendentious case. Until then Obama can't pardon any illegal immigrants. He can't exercise prosecutorial discretion either since he isn't an legal representative of the state either, but at least that's just an anti-constitutional power grab as opposed to an attempt to distort the process behind presidential pardons.

Comments for this entry have been closed
Return to top