DHS Secretary to Congress: 'You Cannot...Micromanage' the Executive Branch

By Susan Jones | May 30, 2014 | 10:48 AM EDT

Rep. Trey Gowdy (R-S.C.) (CNSNews.com)

(CNSNews.com) - Congress "needs to be careful not to intrude on the discretion that the Executive Branch should normally have," Homeland Security Secretary Jeh Johnson told the House Judiciary Committee on Thursday.

"You cannot, with all respect, micromanage certain functions that the Executive (Branch) is charged with carrying out."

Johnson was responding to Rep. Trey Gowdy (R-S.C.), who asked him to explain the difference between prosecutorial discretion and "wholesale" failure to enforce the law.

"Are there any categories of law that the chief executive really, actually has to enforce, and this time we really mean it?" Gowdy asked.

"As a lawyer, I will tell you I believe there are," Johnson said. "I think that there comes a point where something looks like a wholesale abandonment of the enforcement of the law versus prosecutorial discretion."

But Johnson found it difficult to explain where the line is crossed.

"The Legislative Branch can and should set the broad parameters for national policy, and the Executive (Branch) should be given a certain amount of discretion based on existing circumstances to implement and enforce those laws," he said. "And there's a line between those two that I think is probably a little difficult to articulate."

Gowdy asked Johnson to help him "find where that line is."

"The beauty of this county is, even if our politics differ, we still respect the rule of law. And we are playing with the foundation of this republic when we decide selectively which laws we're going to enforce due to political expediency. That transcends politics and begins to impact the foundation of this republic," Gowdy said.

"And I would urge you to help me find where that line is between prosecutorial discretion and (you just deciding) you don't like to enforce the law."

Earlier, Johnson told the committee that the concept of prosecutorial discretion has been around a long time in the criminal justice context, and he said limited resources from Congress means "we have to continually reevaluate how best to prioritize who we enforce the laws against."

Johnson described prosecutorial discretion as a "prioritization."

"Now, somebody who is a low priority is not necessarily beyond the reach of the law. They are a low priority, but they don't have any sort of...amnesty."