Enforcement Discretion and Executive Duty: Introduction

Hello! I’m delighted to be guest-blogging this week about my forthcoming article, “Enforcement Discretion and Executive Duty.” I’m grateful to Eugene for the opportunity to participate in the blog and for his introduction yesterday, and to Will for his generous post about my article a few weeks ago.

My article will be published in the Vanderbilt Law Review in April. It remains, however, a draft that I’m hoping to improve in various ways, so I’m looking forward to benefitting from the discussion here.

The article addresses the proper scope of the executive branch’s enforcement discretion — the authority to turn a blind eye to particular legal violations. As I’ll explain in more detail in later posts, this form of discretion is central to the operation of both modern criminal justice and modern administrative law.

It’s also come up in a number of current controversies. The Department of Homeland Security, for example, has adopted a controversial program of “Deferred Action for Childhood Arrivals” under which it exercises its “prosecutorial discretion” to grant permission to remain in the country to certain undocumented immigrants who would otherwise be subject to removal under immigration statutes. The Department of Health and Human Services has also suspended enforcement of key requirements of the Affordable Care Act, including the mandate that employers above a certain size maintain health coverage for their employees.

Although these recent policies may have sparked particular controversy, the problem of non-enforcement is not unique to the Obama Administration. While their practices have typically been less transparent, Republican administrations in the past have pursued deregulatory policy goals through under-enforcement of environmental and antitrust laws, among other things.

My article proposes a framework for thinking about such policies. My thesis is that the scope of executive enforcement discretion with respect to any given statutory regime is ultimately almost completely up to Congress, but in the absence of more specific statutory guidelines, two constitutionally derived presumptions dictate the scope of executive discretion. On the one hand, the executive branch may presume discretion to decline enforcement in particular cases for case-specific reasons. On the other hand, the executive branch presumptively lacks discretion to forego enforcement on a prospective or categorical basis for reasons of policy.

I’ll say more in later posts about the constitutional basis for this framework and about recent controversies. For the moment, let me just say a word about what I’m reacting against and about the nature of the constitutional issue presented by the recent Obama Administration policies.

As to what I’m reacting against, the problem of enforcement discretion has leant itself to fairly absolute claims on both sides. In a recent article, for example, John Yoo and Robert Delahunty propose that executive officials have an absolute duty to enforce federal laws, subject only to certain defenses that may excuse a breach of the duty. On the other hand, Judge Kavanaugh recently suggested in a separate opinion in In re Aiken County that enforcement discretion is an absolute prerogative of the President that Congress can’t limit or take away. I think both these absolute conceptions of enforcement discretion and executive duty are unsustainable on close examination.

Regarding the nature of the constitutional issue, I think there’s been some confusion in the commentary about the nature of the abuse (to the extent there is one) presented by the current administration’s non-enforcement policies. If my framework is right, then the scope of enforcement discretion is ultimately up to Congress (with one caveat I’ll address later). Congress can override either of the two presumptions and expand or contract the scope of enforcement discretion.

To my knowledge, the current administration hasn’t said anything to indicate that it disagrees with me on this point. In other words, it hasn’t clearly taken Judge Kavanaugh’s view that prosecutorial discretion is an indefeasible executive prerogative, immune to congressional regulation or override. As I’ll explain in later posts, I think the administration is presuming too much non-enforcement power in some of its actions, and I think this type of aggressive presumption of non-enforcement authority carries substantial dangers. But it is important to see that it’s ultimately a question of default rules rather than preclusive executive prerogatives.

As I said, in succeeding posts over the next few days, I’ll say a bit more about the constitutional and historical basis for my proposed framework and I’ll also apply it to some recent controversies. But first in my next post I want to say a few words about why the problem of enforcement discretion is harder than it might seem at first and also about why aggressive assertions of non-enforcement power have become so common.