Author Archive | Prof. Zachary Price, guest-blogging

Expanded Discretion: Criminal Justice and Immigration

The final problem of enforcement discretion is how executive officials should understand their role when enforcing federal criminal laws and other statutes that can’t possibly be fully enforced with available resources.

Here recent debates over federal marijuana enforcement and immigration policy are key examples. As more and more states have legalized marijuana use either for medical reasons or even across the board, proponents of liberalization have pressured the Justice Department to suspend enforcement of overlapping federal criminal restrictions on marijuana possession. In a series of policy statements (available here, here, and here), the Department has made clear that it is unlikely to prosecute offenders who are complying with state law unless their conduct implicates significant federal interests.

Regarding immigration, the Department of Homeland Security recently announced a controversial program of “Deferred Action for Childhood Arrivals” (“DACA”). Under this policy, certain undocumented immigrants who entered the United States as young children may obtain a promise of “deferred action” — effectively a promise of non-enforcement of removal statutes — for renewable two-year periods. Immigrants with this status may lawfully work in the United States; in effect deferred action carries a promise not to enforce sanctions against employers who hire these immigrants.

These examples are hard to think about because they both involve areas of law — federal criminal law and immigration — where complete enforcement of the law is effectively impossible and, as a result, the law isn’t written in a way that conforms to the public’s likely policy preferences.

Overbroad conceptions of executive discretion may have helped bring about this troubling legal structure to develop in the first place. The law on the books might better conform to public expectations if executive officials had maintained a stronger norm of full enforcement. It certainly seems likely that there would [...]

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Baseline Enforcement Discretion: The Affordable Care Act Waivers

In my last two posts, I’m going to apply my framework to some contemporary examples.

Because I’m focusing on matters of current interest, these examples all come from the Obama Administration. As I indicated at the outset, however, aggressive use of non-enforcement to set policy is not unique to this administration. Recent Republican administrations have done it too (often less transparently).

As I also indicated earlier, I think there are structural reasons for increasing reliance on non-enforcement to make policy. The practical inevitability of broad discretion in contexts like criminal justice may make such an unbounded conception of enforcement discretion seem familiar and unexceptionable, and it may therefore be hard to resist resorting to it as a policy tool in the face of a hostile or inertial Congress that won’t readily take action to address practical problems with existing laws.

Yet broad exercises of discretion, if unchecked, give rise to a worrisome negative feedback loop: Discretionary non-enforcement frees Congress from accountability for the scope of the laws it enacts, which encourages enactment of further overbroad laws, which in turn give even greater practical discretion to the executive branch.

What’s more, executive practices in one administration set precedents that may be used to quite different policy purposes in future administrations. For instance, a future president might well be less committed to the Affordable Care Act than President Obama is. The interests of those who (like me) would like to see the Act succeed in the long run might well have been better served if the administration had established a stronger norm of literal compliance with the law’s terms than it has done (as I’ll explain shortly).

So how should we think about enforcement discretion and the executive branch’s duty to execute the law?

I think this question breaks down into two [...]

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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 [...]

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Defeasibility of Enforcement Discretion

As I explained in my last substantive post, I believe the Constitution prescribes two baseline presumptions regarding the scope of executive enforcement discretion — a presumption in favor of case-by-case non-enforcement authority, and a presumption against categorical or prospective non-enforcement for policy reasons.

The boundary between case-by-case and categorical or prospective non-enforcement admittedly may not always be clear. I’ll return later to some examples to illustrate the distinction. But in this post I want to address the question of defeasibility.

In my view, the scope of enforcement discretion is ultimately almost completely up to Congress. The presumptions set the baseline default rules, but Congress can expand or contract the scope of executive non-enforcement discretion.

In terms of expansion, the most extreme case would be a law authorizing executive suspension of particular statutory provisions. Such statutory “waiver” provisions seem to be becoming more common, but there have been examples throughout the country’s history, and the Supreme Court has generally upheld them.

Under my framework, such waiver provisions present no separation-of-powers problem, provided the statutory authorization for the waiver is sufficiently clear. As members of Congress recognized in debates over a waiver provision in an 1807 law, “authorization by law to exercise a discretionary suspension of a law” arguably raises none of the historical concerns regarding the royal suspending power, as any suspension of the law under such a statute is based on statutory authority and not some extra-legal executive prerogative.

At the other extreme, I also believe Congress can go so far as to impose enforcement guidelines, or even mandate prosecution if specified criteria are met.

There is one hard limit on this congressional power to restrict discretion: I don’t think Congress can compel prosecution of someone whom the executive branch judges to be factually innocent of the statutory offense. Such [...]

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The Correct Framework for Executive Enforcement Discretion

So what is the correct framework for enforcement discretion? I believe the Constitution carries a central tension on this point, one that’s best resolved by the two presumptions I articulated at the outset — a presumption in favor of case-by-case discretion and a presumption against categorical or prospective non-enforcement for policy reasons.

At the outset, let me address two questions of scope that have come up in the comments. First, the focus of my analysis here and in the article is policy-based non-enforcement. Going back to Thomas Jefferson, Presidents have also refused to execute laws for constitutional reasons. In general, I believe that this longstanding executive practice is sound, although it presents the difficult question of what standard the President should apply in judging unconstitutionality. In any case, the issues it raises are distinct from the problem of policy-based non-enforcement.

Second, my analysis also isn’t focused on questions of judicial review. Courts have generally been very reluctant to review executive enforcement decisions. As I mention in passing in this article (and plan to elaborate in greater detail in my next paper), there may well be good reasons for that reluctance. A court-ordered prosecution might be a scary thing, particularly if it meant the court compromised its neutrality in protecting the defendant’s rights. The key point here, though, is that the executive branch may have constitutional obligations that go beyond what any court would enforce. So in this paper I’ve focused just on the question of executive duty, without regard to whether that duty is judicially enforceable.

With those scope clarifications out of the way, let me go back to the tension I see in the constitutional structure.

On the one hand, the Constitution reflects a principle of congressional supremacy in policymaking. This idea is embodied most specifically in the Take [...]

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Why Presidents Resort to Policy-Based Non-Enforcement, and Why It’s Concerning

Before I go on to explain the basis for the framework I propose in my article, I want to offer a few thoughts on one last preliminary issue, namely, why modern presidents may be tempted to use non-enforcement as a policy tool.

We live in an age of presidential administration and partisan gridlock. The public tends to hold the President accountable for failures of national policy, but at the same time, particularly in periods of divided government, presidents can’t necessarily count on Congress to develop legislative solutions in good faith. (The current Congress, for example, is hardly interested in seeing Obama’s implementation of the Affordable Care Act succeed.)

This structure puts enormous political pressure on the executive branch to try to make policy on its own. Non-enforcement may be a particularly attractive tool for doing so, insofar as it may seem to provide a focused benefit to some while harming no one. Also, courts have generally been reluctant to review executive enforcement decisions, so there may be less risk of judicial reversal than in the case of affirmative judicial reversal.

For these reasons, I think presidents are likely to continue to face pressures to rely on non-enforcement of particular statutory requirements as a policy tool, at least during periods of divided government.

Yet for all the reasons that non-enforcement may be attractive to the executive branch as a policy tool — its circumvention of Congress, the limited political constraints on its use, and the unlikelihood of judicial reversal — it may also be insidious. An unbounded authority to decline enforcement could amount to a sort of second veto, an authority to read statutory provisions out of the code, at least for the duration of a particular presidency.

So I think it’s important to develop a proper understanding of the scope [...]

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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 [...]

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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 [...]

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