A Brief History of Enforcement Discretion

I’ve now laid out my basic framework for the scope of executive enforcement discretion: Congress is generally free to expand or contract executive non-enforcement power, but in the absence of such legislation the executive presumptively holds case-by-case non-enforcement authority but not categorical or prospective non-enforcement powers.

I want to quickly address two points that came up in the comments on my last post.

First, legislation constraining enforcement discretion, either by mandating enforcement with respect to all violations or by imposing enforcement guidelines, does not violate the constitutional prohibition on bills of attainder. That’s true because such legislation requires both executive and judicial determination of any offender’s factual guilt before any punishment is imposed.

Second, as I indicated earlier, in the absence of legislation constraining discretion, the Pardon Clause might support an inference of enforcement discretion in the criminal context. But the Pardon Clause also doesn’t preclude legislation restricting prosecutorial discretion. Pardons are different from non-enforcement: they’re overt and irrevocable, whereas non-enforcement decisions may be made in secret and may be revised. I think Congress is free to force the President to rely on the pardon power, and not enforcement discretion, to excuse particular violations.

For other more specific questions, I’m going to refer folks to the paper itself, which goes into much more detail on all the topics I’m addressing in theses posts. Here’s the link again to the paper.

In this post, I want to briefly discuss the history of enforcement discretion — how we got from the constitutional framework I’ve laid out to the world of virtually unbounded prosecutorial discretion I described a few posts ago as the essence of modern federal criminal justice and much modern civil regulation.

The broad arc of law enforcement history has been towards increasing systemic reliance on prosecutorial discretion.

In the early years of the Republic, the U.S. Attorneys and other law enforcement officials generally weren’t salaried. Instead, they were compensated with case-by-case fees or a share of penalties or forfeitures resulting from a successful prosecution. In some cases, qui tam provisions enabled private parties to bring enforcement actions, too; they could also receive a share of resulting penalties or forfeitures.

The vision of the law reflected in such arrangements is law as a real code of conduct. By creating incentives for public officials, and even in some cases private parties, to bring cases forward, the legal architecture promoted complete enforcement of the law as written.

Nevertheless, I’ve found substantial evidence of discretion during the first few presidential administrations. Much of this discretionary enforcement was oriented towards sorting the guilty from the innocent. A lot of it also focused on the related problem of selecting enforcement targets judiciously so as to achieve convictions and favorable legal precedents (and avoid acquittals or unfavorable legal rulings that could undermine law enforcement goals).

But I’ve also identified at least a few cases where executive officials exercised discretion based on a broader range of case-specific factors. For example, in one case, cabinet officials directed the U.S. Attorney not to prosecute offenders who appeared to have “thoughtlessly” committed violations, and in another case Treasury Secretary Alexander Hamilton directed customs officials not to seek penalties where he believed the offense was minor and no fraud was intended.

I think this early practice strongly supports my first presumption — the presumption in favor of some degree of case-by-case enforcement discretion. To some degree at least, discretion has always been with us. Executive practice has simply never conformed to the understanding of the Take Care duty as an automatic, unqualified obligation propounded by Yoo and Delahunty, among others.

At the same time, there is also some support in early practice for my second presumption — the presumption against broader powers of non-enforcement for policy reasons.

At the least, Alexander Hamilton articulated a view of the executive function very close to mine in his supervision of customs and revenue collection officials as Secretary of the Treasury.

For example, in 1792, a customs collector advised Hamilton that he was not enforcing a statutory provision requiring ship captains to maintain certain manifests of their cargo. The collector said the provision was “not accurately observed in scarcely any one instance,” and he generally saw “no reason to suspect fraud” in such cases. Hamilton responded by insisting that the statute “should now be enforced.”

Hamilton later explained in a circular letter to all customs collectors that while “small deviations from literal strictness may, with due circumspection, be admitted” in enforcing the revenue laws, “such deviations ought to be really necessary ones — such, without which the essential course of business might be disturbed, and oppression ensue — and ought to be as seldom, and as little as possible.”

Of course, this ideal of complete enforcement of the law as written proved impossible to maintain in some situations. The Washington Administration faced particular problems enforcing excise taxes on distilled spirits in frontier areas along the expanding new nation’s western edge. For a number of reasons, western settlers perceived these taxes as an unjust imposition of eastern elites that they were justified in resisting with violence.

Yet the Washington Administration’s eventual response is instructive. When tax resistance came to a head in Western Pennsylvania in the so-called Whiskey Rebellion of 1794, President Washington invoked his constitutional duty to ensure faithful execution of the laws and
summoned a military force exceeding in size the Continental Army that fought the Revolutionary War to restore order.

There’s more detail on early federal law enforcement practice in the paper for those interested. My claim about early practice is tentative, and the fit with my theory may not be completely tidy. But I do think there’s important evidence that key early executive officials believed they held a duty, at least ideally, to enforce federal laws as written, subject only to limited case-by-case exceptions (or exercises of the pardon power).

At any rate, the story since the founding has been one of increasing systemic reliance on enforcement discretion. The change has resulted from the steady expansion of federal law and the rise of more bureaucratic, salaried forms of administration and law enforcement.

As Nicholas Parrillo demonstrates in his excellent new book, “Against the Profit Motive: The Salary Revolution in American Government, 1780-1940,” an express purpose of the shift away from fee-based compensation for law enforcement officials to salaried compensation was to promote greater enforcement discretion.

In 1896, for example, Congress terminated case-based compensation for U.S. Attorneys, adopting fixed salaries instead. Members of Congress debating the measure complained about “technical,” “vexatious,” and “useless” enforcement actions. They expressly hoped that by taking away case-by-case fees, they would remove the incentive for U.S. Attorneys to pursue all legal violations.

Congress thus responded to a problem of its own making — the proliferation of strict and often highly technical federal offenses — not by moderating its substantive enactments, but rather by adjusting prosecutors’ compensation to encourage discretionary non-enforcement.

In my next post (or maybe two), I’ll finally circle back to where we are today. Using some recent examples of non-enforcement as illustrations, I’ll discuss the implications of my framework for thinking about enforcement discretion in the modern context.