Academic journal article Notre Dame Law Review

Law Enforcement as Political Question

Academic journal article Notre Dame Law Review

Law Enforcement as Political Question

Article excerpt


Across a range of contexts, federal courts have crafted doctrines that limit judicial second-guessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement's "unsuitability" for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the "political question doctrine": while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine--"textual assignment" and "judicial manageability"--usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry.

This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering "deferred prosecution agreements" in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.


What authority do federal courts have to review executive nonenforcement choices? On the one hand, the Supreme Court has deemed prosecutorial discretion an "exclusive" and "absolute" executive authority, (1) interpreted the Administrative Procedure Act (APA) to presumptively bar judicial review of nonenforcement, (2) and severely limited Article III standing to challenge government inaction. (3) On the other hand, the Court has indicated that agencies cannot "simply ... disregard statutory responsibilities," (4) suggested that they cannot adopt policies that "abdicat[e]" enforcement, (5) and at least entertained the possibility of tort damages for failures of enforcement. (6) What is more, the Court has repeatedly coupled assertions of executive authority with descriptions of enforcement discretion as "unsuitable" for judicial review, (7) leaving it unclear whether executive nonenforcement authority is unreviewable because it is absolute, or only absolute insofar as it is unreviewable. While generally insulating executive nonenforcement from judicial scrutiny, the case law thus carries important ambiguities of scope and rationale.

Clarifying the boundaries of judicial power over executive enforcement has nevertheless gained new urgency. Depending on how various preliminary questions are resolved, the Supreme Court may well address the issue this term in litigation challenging controversial immigration nonenforcement initiatives. (8) At the same time, litigation percolating in lower courts has raised questions about prosecutorial "deferred prosecution agreements" (DPAs), an increasingly significant executive practice in which the government forgoes prosecution in exchange for the defendant's acceptance of alternative reform conditions. (9) In both contexts, critics have pushed for a broader judicial role, despite courts' historic reluctance to intrude on executive enforcement decisions, yet few commentators have grappled adequately with the particular challenges that judicial review of enforcement-related questions presents. …

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