Cite as: 525 U. S. 471 (1999)
Souter, J., dissenting
being punished for an act he has committed, or because the presence of an alien in the United States is, unlike a past crime, "an ongoing violation of United States law," ibid. (emphasis deleted). While the distinctions are clear, the difference is not. The interest in avoiding selective enforcement of the criminal law, shared by the government and the accused, is that prosecutorial discretion not be exercised to violate constitutionally prescribed guaranties of equality or liberty. See United States v. Armstrong, 517 U. S. 456, 464- 465 (1996); Wayte v. United States, 470 U. S. 598, 608 (1985). This interest applies to the like degree in immigration litigation, and is not attenuated because the deportation is not a penalty for a criminal act or because the violation is ongoing. If authorities prosecute only those tax evaders against whom they bear some prejudice or whose protected liberties they wish to curtail, the ongoing nature of the nonpayers' violation does not obviate the interest against selective prosecution.
No doubt more could be said with regard to the theory of selective prosecution in the immigration context, and I do not assume that the Government would lose the argument. That this is so underscores the danger of addressing an un-briefed issue that does not call for resolution even on the Court's own logic. Because I am unconvinced by the Court's statutory interpretation, and because I do not think the Court should reach the selective prosecution issue, I respectfully dissent.
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Last modified: October 4, 2007