Why Enforcement Discretion Is Hard to Think About Clearly

As I indicated in my previous post, before I go further into the framework that I believe governs the scope of executive enforcement discretion, I want to offer a few thoughts on why the problem is hard to think about and why recent presidents have resorted to non-enforcement of statutes as a means of advancing their policy objectives.

I’ve decided to devote this post to the first issue (why the issue is hard) and I’ll follow up soon with a short second post on why non-enforcement is so attractive to presidents.

The first thing to appreciate about enforcement discretion is that huge amounts of non-enforcement are inevitable in federal criminal justice and many civil regulatory contexts.

Federal criminal law is the paradigm example. Federal criminal law started out being sparse and interstitial in the early years of the Republic, but that’s no longer true. Federal criminal law today is extensive and massively punitive.

It covers a lot of offenses, like low-level drug possession, that almost everyone agrees are more appropriately matters of state, rather than federal, law enforcement. It includes a number of extremely broad fraud and false statement offenses. And it includes a lot of regulatory crimes that aren’t matters of ordinary moral intuition. What’s more, there are many overlapping federal crimes, and federal sentences are often quite severe.

As other scholars have observed, it would be a mistake to see this body of law as a real code of conduct. At the least, Congress hasn’t provided anywhere near the enforcement resources that would be needed to fully prosecute all these crimes. In practice, federal criminal law functions as a set of tools that prosecutors can use to achieve convictions or plea bargains in cases where they feel they need to punish reprehensible conduct or get a dangerous person off the street.

I don’t think this is a normatively attractive legal architecture. I basically accept the critique, articulated most powerfully by the late Bill Stuntz, that this this structure gives too much discretion to prosecutors and too little accountability to Congress for the scope of its enactments.

For present purposes, though, two observations are key. First, this system depends heavily on prosecutorial discretion. And second, such discretion is necessary because Congress has structured the law in ways that presume it.

I think the familiarity and inevitability of prosecutorial discretion in federal criminal law and many civil regulatory contexts clouds our perception of how broad such discretion should be as a matter of first principles. So one thing I try to do in my article is clear away the intuitions supported by the current structure and return to first principles in thinking about the proper division of labor between Congress and the executive branch.

In other words, I try to develop a baseline framework for thinking about enforcement discretion and then build back up to the question of how executive officials should think about their role in areas like criminal law where the legal structure presumes broad discretion.

I’ll come back to both these questions later in my posts.