Put generally, prosecutorial discretion is the power not to act to enforce the law. In Part One of this series, I focused on the debated nature and origins of prosecutorial discretion. My goal in Part Two is to outline some recent conservative legal thinking about prosecutorial discretion. In Part Three, I will apply these principles to some contemporary issues (like the immigration debate) and provide some reflections on the state of the law.
Is prosecutorial discretion “absolute,” in the words of a bit of dicta from United States v. Nixon (1974)? As we will see, the constitutional limits of discretion in nonenforcement are set by the Take Care Clause, the nondelegation doctrine, and prohibitions on selective prosecutions. In addition, Congress has the ability to limit discretion through statutes that constrain the executive’s decision not to act.
1. The “Take Care” Clause
Article II, Section 3 of the Constitution states: “[The president] shall take care that the laws be faithfully executed.”
The textual meaning of this provision is straightforward: The president has a duty to execute the laws. With such a seemingly clear statement of the president’s duty to enforce the law, why would the government ever be allowed to decline to enforce a law, either in a particular case or in general?
Everyone agrees that a mere failure to enforce every law to its fullest possible extent is not unconstitutional, given the reality of limited taxpayer resources and the infeasibility of perfect execution. As a result, any interpretation of the Take Care Clause has to include some allowance for some nonenforcement.
There is less consensus, however, about how much enforcement is enough. Justice Scalia seems to take a relatively lenient view. He has described the prosecutor’s discretion as the “balancing of various legal, practical, and political considerations, none of which is absolute,” which he considers “the virtual embodiment” of the power exercised in the Take Care Clause.
Professors Robert Delahunty and John Yoo make a compelling case that there is no general presidential power of nonenforcement. They write: “The Take Care Clause sets the baseline; any deliberate deviation from it is presumptively forbidden. But as with legal duties generally, the duty is ‘defeasible,’ and its nonperformance can be excused or justified in appropriate circumstances.”
They identify four legitimate excuses and discuss them in the context of the immigration law debate: (1) unconstitutionality of a statute; (2) equity in individual cases; (3) insufficient resources; and (4) the de facto delegation of legislative power. I’ll leave you to read the whole article yourself, but it’s well worth your time. Also worth reading is a response by Professor Sai Prakash.
2. The Nondelegation Doctrine
As you may remember, the Supreme Court has often affirmed (without enforcing the principle) that “legislative powers” cannot be delegated to the executive. The test is whether Congress has given the executive an “intelligible principle” to apply.
At a high level, the notion of prosecutorial discretion presents a challenge to the nondelegation doctrine: If the executive has the power not to act, then it has the power to undermine the substance of whatever intelligible principle Congress has legislated. As a result, the broader one’s view of nonenforcement discretion, the bigger the nondelegation problem.
Despite this tension, courts tolerate broad criminal prosecutorial discretion because of the numerous problems with trying to supervise criminal prosecutions. As Justice Powell said in Wayte v. United States (1985):
Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.
For non-criminal enforcement, such as administrative enforcement, the Supreme Court has been somewhat less deferential when Congress makes its wishes known. (I will discuss this more below.)
3. Selective Prosecution (Equal Protection and Due Process)
The Constitution’s limits apply to discretionary action or inaction regardless of whether a statute sets limits. The Supreme Court has applied the Fifth Amendment Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to prohibit selective prosecutions.
In United States v. Armstrong (1996), Justice Rehnquist wrote for the majority that a selective-prosecution claim in the criminal context requires proof of both discriminatory effect and purpose, in keeping with the “ordinary equal protection standards.” This is a very difficult defense to raise in the criminal context, so it is rarely successful because the defendant would have to show that similarly-situated individuals of a different race were not prosecuted.
Armstrong also traced a long line of selective prosecution cases, including a general ordinance in Yick Wo v. Hopkins (1886), that was (magically) enforced only against Chinese immigrants. The Supreme Court found an equal-protection violation in the enforcement, noting that the Fourteenth Amendment specifically applies to “person[s]” within the states’ jurisdictions without regard to their citizenship. From there, the court reasoned that the ordinance’s enforcement was carried out in a fashion “directed so exclusively against a particular class of persons” that they indicated “a mind so unequal and oppressive” behind the enforcement, concluding that their enforcement (later described as having “an evil eye and an unequal hand”) constituted an equal-protection violation.
Selective prosecution can also give rise to civil liability, albeit with a stronger showing from the plaintiff. In Hartman v. Moore (2006), the prosecutor had allegedly initiated a criminal action in retaliation for the defendant’s First Amendment activities. The Supreme Court, however, required the plaintiff to prove that there was no probable cause for the prosecution, thus requiring a showing of malicious prosecution rather than retaliation.
If you’re interested in reading more about selective prosecution doctrine, take a look at Wayte v. United States (1985) and United States v. Falk (7th Cir. 1973), which dealt with selective prosecution based on exercise of First Amendment rights. In general, the Supreme Court has condemned prosecutions deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Keep in mind, however, that Congress can also withdraw jurisdiction from federal courts for certain types of challenges to administrative activity, including selective prosecution suits.
4. Statutory Mandates
In the criminal context, Congress leaves most enforcement decisions to the executive branch. Some criminal statutes mandate an investigation but leave the charging decision to the executive branch. The False Claims Act, for instance, says the government “shall” investigate fraud but “may” prosecute any violations. The Internal Revenue Code likewise states that the IRS “shall investigate violations” of various tax laws and report the violation to the federal prosecutor, but stops short of requiring prosecution even if a violation has occurred.
For administrative nonenforcement decisions, Congress provided for general judicial review in the form of the Administrative Procedure Act, which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This would suggest that administrative inaction is generally subject to judicial review.
But in Heckler v. Chaney (1985), the Supreme Court held that despite the APA, an administrative decision not to enforce is presumptively not subject to judicial review at all. Justice Rehnquist wrote:
This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.
The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute.
Why is a nonenforcement decision different from a decision to enforce? The Court relied on its noncoercive aspect:
In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.
The Court also noted that if “the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” nonenforcement would be reviewable.
If you would like to see practical examples of reviewable nonenforcement, take a look at environmental citizen suit statutes that authorize citizens to force the government to enforce certain environmental laws or regulations. Some of those statutes even force the government to engage in lawmaking. In Massachusetts v. EPA (2007), the Supreme Court concluded that the Bush administration’s refusal to regulate violated the statutory criteria establishing when the EPA had to regulate. It may seem odd that Congress would daisy-chain procedure together like that by authorizing a private citizen to use the judiciary to force the executive to exercise Congress’s own delegated power of lawmaking, but that’s Congress for you.
Anyway, why is there such a difference between the standards for non-criminal cases and criminal cases? Aside from the immediate practical considerations noted above, I think the best legal answer lies in their respective origins. The broad prosecutorial discretion in federal criminal cases would have been carried over from English common law doctrine of nolle prosequi in the original meaning of the Judiciary Act of 1787. There is no such tradition of executive “prosecutorial discretion” with regard to clear statutory instructions from Congress, however, so the courts have been less deferential.
Could Congress, in theory, mandate certain criminal prosecutions? I suppose so, though it doesn’t strike me as a good idea. Even assuming that such a law would not act as a Bill of Attainder, Wayte’s description of the problems with judicial supervision of criminal prosecutions barely scratches the surface. In my view, it’s best for Congress to establish broadly acceptable priorities for criminal law enforcement and leave the highly fact- and law-dependent decisions to the officials who are charged with carrying out those decisions.
In my third and final post about prosecutorial discretion, I will apply these principles to some contemporary legal issues and conclude with some reflections.
For further reading:
‐ Sai Prakash, Take Care Clause, The Heritage Guide to the Constitution