Academic journal article Northwestern University Law Review

Agency Underenforcement as Reviewable Abdication

Academic journal article Northwestern University Law Review

Agency Underenforcement as Reviewable Abdication

Article excerpt

Introduction

Sixty-seven: the number of endangered Mexican wolves that had been killed illegally from their reintroduction into the American Southwest in 1998 through 2015.1 Fourteen: the number of Mexican wolves that were killed in 2016 alone-the highest number in a single year.2 Two: the total number of killings that have been prosecuted.3 This high number of killings, many of which are classified as potentially illegal,4 presents an opportunity for the Department of Justice (DoJ) to investigate and prosecute suspected individuals under the Endangered Species Act (ESA). But the DOJ has underenforced the ESA by requiring prosecutors to request jury instructions that set the mens rea as specific intent; to satisfy that, prosecutors must show that the defendant knew he was shooting an endangered animal.5 Because the eventual mens rea prosecutors must prove at trial impacts which cases to investigate and prosecute, the difficulty of proving this mens rea beyond a reasonable doubt at trial has resulted in fewer prosecutions.6 As the policy only rarely results in enforcement, it undermines the deterrent effect of the ESA's criminal prohibition on the killing of endangered species.7 Yet this prohibition is one of the statute's main ways of protecting endangered species, and the DOJ's adoption of this policy cannot easily be squared with Congress's intent in enacting the ESA.8

Beyond this policy, executive underenforcement has proliferated in the last few decades, including under Presidents Ronald Reagan,9 George H.W. Bush,10 and George W. Bush.11 More recently, President Barack Obama used underenforcement as a tool to achieve policy directives when faced with a recalcitrant Congress. For instance, the DOJ deprioritized prosecution of certain federal marijuana offenses,12 the Department of Health and Human Services postponed deadlines for key provisions of the Affordable Care Act,13 and the Department of Homeland Security implemented deferred action programs that relied upon underenforcement of existing immigration laws.14

Legal challenges to agency initiatives have had mixed success.15 This is partially due to the Supreme Court's interpretation of the federal courts' power to review certain aspects of agency decisionmaking. The Administrative Procedure Act (APA),16 which establishes the general scope of judicial review for administrative agency action, allows for review of final agency action or inaction.17 In Heckler v. Chaney, however, the Court interpreted the APA to give an agency's decision not to enforce a potential civil or criminal violation a presumption of unreviewability.18 The Court also provided ways to rebut that presumption of unreviewability, one of which requires showing that the agency has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities."19

This Note explores both how courts and scholars have interpreted and should interpret this exception for agency abdication. There are two main ways of construing the Chaney abdication exception's scope: (1) the abdication exception applies only when there is complete or total nonenforcement or (2) the abdication exception applies if there is either complete nonenforcement or severe underenforcement. This Note defines severe underenforcement as underenforcement so severe that it reaches the same practical result as total nonenforcement, such as when a provision is enforced only twice per year when many more opportunities to enforce it existed.20 There is also a third approach to all agency enforcement taken by the D.C. Circuit, which, instead of focusing on the abdication language, allows review when an agency has adopted a general enforcement policy.

To understand these three approaches, consider three examples. First, suppose that the Department of Homeland Security did not investigate or deport any illegal aliens for a year. The total nonenforcement and severe underenforcement approaches would likely allow judicial review in this situation. …

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