Thursday, March 19, 2015
The scope of judicial authority to review executive enforcement choices has long befuddled courts, producing a confused and incoherent body of case law that exempts most (but not all) enforcement decisions from judicial review. This incoherence has become an urgent problem, however, as the executive branch appears increasingly inclined to charge through the door opened by limitations on judicial review of enforcement. At the level of national policy, several recent executive actions now subject to litigation — particularly the Department of Homeland Security’s efforts to halt removal of certain broad categories of undocumented immigrants — have depended on broad theories of executive non-enforcement authority. Meanwhile, at the ground level of federal law enforcement, federal prosecutors have aggressively used criminal enforcement discretion to advance regulatory goals through so-called “deferred prosecution agreements” that involve neither a conviction nor even a plea agreement.
To bring clarity to this confused area, this paper advocates reframing the question of judicial power over law enforcement in terms of the political question doctrine, the morphous exception to federal-court jurisdiction for legal questions that properly belong to the political branches. Executive law enforcement choices may qualify as political questions in two different ways. First, the constitutional text and structure support a narrow relief-based limit on judicial power: courts may not compel executive prosecution in particular cases. The power to choose which particular enforcement suits to bring thus falls within the category of political questions that are “textually assigned” to a branch other than the judiciary. Second, broader executive enforcement choices may qualify as political questions because in many areas of modern regulation resource limitations necessitate tradeoffs between competing enforcement priorities and courts lack institutional legitimacy and competence to second-guess the priorities that executive agencies select. Such broader enforcement choices may thus fall within the category of political questions where courts lack “judicially manageable standards” for resolving disputes.
Reframing the scope of judicial authority in this way has a number of important implications, some with immediate relevance to current litigation. First, the framework developed here clarifies that courts’ capacity for review does not define the content of the executive obligation. Judicial review and executive duty are distinct issues; the law places a gap between executive officials must do and what courts can enforce. Second, the framework clarifies that judicial review is permissible in contexts where review does not involve a political question. In particular, courts may review and invalidate policies that prospectively cancel statutory requirements, because invalidating such policies involves neither compelled prosecution in particular cases nor second-guessing of executive resource-allocation judgments. Third, the framework justifies stronger judicial oversight of enforcement in areas where Congress has provided for it. Congress has done just that with respect to deferred prosecution agreements, yet courts have persisted improperly in rubber-stamping executive decisions. Fourth, by directly addressing limits on judicial power over enforcement, the framework points the way to a more coherent doctrine of Article III standing. Finally, the framework sheds new light on the political question doctrine itself. It raises the possibility that some other political questions — particularly the all important question of executive war powers — may also be judicially unmanageable because Congress has made them so, and not because the Constitution so requires.