Liberty, Prudence, Imperfection, and Law

“Fallout from Obama’s Order: Debating the Legality of Prosecutorial Discretion as a Presidential Power,” By Peter Haworth


In addition to the expected Republican and conservative outrage about President Obama’s recent executive order to provide protective (deferred action) status to millions of illegal immigrants, the event has also occasioned controversy among legal pundits and public intellectual about the constitutionality of such action and even the very notion of the president having a power of prosecutorial discretion—e.g., discretionary power not to enforce federal law when a plethora of violations exceed prosecutorial resources. What follows is a presentation of key issues and contours of this debate. Specifically, the debate will be examined in relation to four primary topics: (1) various interpretations of Article II, Sections 1 and 3 that are relevant to presidential prosecutorial discretion; (2) past historical precedents; (3) congressional delegations to the president within immigration law; and (4) relevant case law. Given both the subject’s complexity and the multiple interlocutors, this essay’s content and treatment will not be exhaustive, and a hopeful sequel essay will further analyze the Obama Administration’s justification for the November 20th executive order.


I. Prosecutorial Discretion and the Constitution: Article II, Sections 1 & 3

In considering the recent debate about prosecutorial discretion, it is important to understand how the issue pivots on interpretations of at least two different clauses within the Constitution: (1) Article II, Section 1’s “The executive power shall be vested in a President of the United States of America” (or the Executive Power Clause); and (2) Article II, Section 3’s “shall take care that the laws be faithfully executed” (or the Take Care Clause). These constitutional descriptions of presidential power and presidential duty often frame the debate about the existence and extent of prosecutorial discretion, and several of scholars and judicial experts develop their arguments based on these clauses.


A. The Strong Discretion Position:

Some have argued that President Obama’s recent executive order is justified as an act of the president’s prosecutorial discretion. Moreover, they believe that this stems from the presidential office’s constitutional authority defined in the first sentence of Article II, Section 1: “The executive power shall be vested in a President of the United States of America.”

Before examining Ilya Somin’s argument for a strong degree of discretionary powers, it is helpful to briefly consider the Executive Power Clause (some refer to it as the Vesting Clause). Regardless of how far one attempts to stretch it (and some, like John Yoo, have expansive interpretations of Vesting as it relates to presidential war and foreign policy powers), the executive authority connoted by this clause seems to at least mean the power to enforce federal laws. As explained by Julian Davis Mortenson at Lawfare, William Blackstone viewed “executive authority” as “’the right of . . . enforcing the laws,’” and this was widely understood by the Framers and ratifying Founders; hence, it is safe to conclude that the executive authority vested in the president at least included this. If, however, the president has the power to enforce the laws, then he may logically also have the discretionary power to decide how such performance is conducted, especially because practical decisions have to be made about how to prioritize types of violations of federal criminal laws in an environment where it is impossible to prosecute every instance of a violation.

In developing his interpretation of significant presidential discretionary powers, Ilya Somin argues that the current environment of over-criminalizing federal code and limited financial resources for prosecuting violations makes such discretionary prioritization inevitable. In “Obama, Immigration, and the Rule of Law,” Somin writes:

[I]n reality, all modern presidents inevitably make policy choices about which violations of federal law to prosecute. Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority. . . .

To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion. . . .

Because of the enormous scope federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute. Far more violators are systematically ignored than punished. To take just one of many examples, for decades federal law enforcement officials have almost never prosecuted the possession and use of marijuana on college campuses, even though such possession is clearly forbidden by the Controlled Substances Act. By doing so, they have let many millions of federal criminals off the hook, including the last three presidents of the United States – far more than are exempted from deportation by Obama’s policy.

In fact, according to Somin, these facts create an environment in which the president has a wide breadth of discretion, and this makes the substance of Obama’s recent executive order appear in keeping with other common examples of non-enforcement.

Somin also suggests that relevant presidential discretion was already largely granted by Congress within the pertinent immigration laws: “In this field, Congress itself has delegated wide latitude to the president, which makes the exercise of discretion even less problematic than in many other cases where the law is written in a more categorical way.” Here one should consider the Washington Examiner article to which Somin links. This specifically elucidates such laws’ broad grants of discretion to make the kinds of determinations that Obama is making. More will be said about this below.

We should also discuss Somin’s radical vision for presidential prosecutorial discretion that spans well beyond the current immigration controversy. Professor Somin argues that prosecutorial discretion is constitutionally part of the president’s authority within the federal separation of powers system and, hence, empowers a president to avoid prosecuting violations of federal law for the sake of realizing desired policy aims. This becomes apparent in Somin’s (in “In Praise of Obama’s New Immigration Policy”) bold answering of Michael Ramsey’s critical questions about prosecutorial discretion. In response to Ramsey’s hypothetical question, “Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause? Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes?”, Somin answers:

On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, presidents are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

Somin’s understanding here of prosecutorial discretion as a constitutional presidential power within the separation of powers system will be further discussed below in relation to Michael Ramsey’s work. We can note the obvious libertarian implications of Somin’s view. Each president could effectively gut the federal government’s criminal law merely through exercising his constitutional discretion not to enforce it. Such non-enforcement, however, could not permanently nullify federal law; however, it could pressure the system towards greater liberty, for it would force future presidents to explicitly override the pro-liberty executive orders and revive vigorous enforcement. For someone like Somin, who notes and is apparently concerned with the over-criminalizing conditions of current federal code, such an additional presidential tool for securing liberty within the United States is understandably very attractive. (Note: In August 2013, Michael Ramsey articulated an apparent, but more tentative, embrace of something similar to Somin’s view, but Ramsey is still grouped below within the moderate-view category because his new position is both more qualified by the Take Care Clause and more tied to reflections about the Founding, as opposed to overt pushing of libertarian-friendly jurisprudence).

Also, it is interesting that Somin views the limits of this presumed presidential power of prosecutorial discretion to be political, rather than constitutionally legal, in nature. Unlike those like Sandefur with very limited conceptions of prosecutorial discretion, Somin (in “In Praise of Obama’s New Immigration Policy”) does not view the Take Care Clause as greatly constraining discretion. Rather, it “means is that the president (as opposed to Congress or the courts) is the official tasked with enforcing the laws and that he must make a good faith effort to decide on the best law enforcement strategy he can, given all relevant circumstances.” Even more, Somin claims that Take Care “does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.” Although Somin ultimately concedes to a few such constitutional limitations on a president’s prosecutorial discretion, he primarily views the limits to be political in the same manner as the president’s power to pardon is limited:

The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

For Somin, the president’s power of prosecutorial discretion expands with the expansions of the federal law. In a system such as ours where, as Somin notes, most adults are technically guilty of some violation within the voluminous code that pervasively regulates many of the nooks and crannies of everyday life, the scope of the president’s prosecutorial discretion is also massive. And Somin (in “Are There Limits to Executive Discretion in Enforcing Federal Law?”) turns the tables on those arguing for a more limited presidential power of prosecutorial discretion by suggesting that this can be accomplished through limiting the scope and quantity of federal law:

But the ultimate root of the problem is the enormously broad scope of federal law. Even if Congress were more assertive, it could not prevent the president from exercising extremely broad discretion in a world where almost everyone is a federal criminal, and he has to pick and choose a small fraction of those criminals to go after. If we truly want to limit executive discretion and selective enforcement of laws, the best way to do so is to cut back on the scope of federal law to the point where the president has the resources to go after all or most offenders. Better still, federal law could be limited to those activities for which there is a broad consensus that they really are serious offenses that cannot be left to the states, and must be targeted by the federal government. If a president still chose not to enforce them, or did so only selectively, he (and his party, if they choose to support his actions) would suffer a tremendous political backlash.


B. The None-to-Miniscule Discretion Positions:

Others, however, have questioned whether Article II, Section 1 gives the president much discretion at all. They point to how Article II, Section 3’s Take Care Clause significantly hedges (if not eliminates) the president’s discretion and completely renders illegitimate significant non-enforcement such as what Obama is endeavoring with respect to immigration. Timothy Sandefur argues for this by analyzing the Take Care Clause in Article II Section 3:

The Constitution says that the President “shall take care that the laws be faithfully executed.” Note how mandatory that language is. Not that he “should” or “will” enforce the law; he shall. And he’s not just to enforce the law; he’s to take care about it. And he isn’t even just to enforce the law–he’s to execute the law. Most of all, he is to do so faithfully. As in, in good faith. As in, in their letter and spirit. If you were writing a Constitution, and wanted to write language that would, as clearly as possible, forbid the president from choosing which laws to enforce and which not to, just to suit his own personal desires, this language is exactly what you would choose.

A president faced with limited resources who chooses to prosecute only the severest crimes the budget will allow, is faithfully taking care that the laws be executed. He’s doing his best to see to it that the laws are enforced “to the best of [his] ability.” Obviously choices must be made, and when made, will be made on accordance with policy. Nobody argues that the President has an “absolute duty to prosecute all violations of federal law.” But he does have a duty–as absolute as any the Constitution contemplates–to take care that the laws be faithfully executed. And breaking the law–taking actions the President himself has repeatedly admitted are illegal–not as a result of budgetary problems, but simply because he disagrees with current law, is not faithful execution of the law. In fact, it is just about as clearly the opposite of that as you could get.

According to Sandefur position, then, there is very limited prosecutorial discretion, and the permissible range is limited to the “letter and spirit” of the law. Discretionary non-enforcement is only justified to the extent the president makes a good faith (faithfully) prioritization of violations based his good faith assessment of their degrees of severity in accordance with the letter and spirit of the law. And, according to Sandefur, President Obama has not done this in his recent executive order; instead, he is not enforcing the law based on his policy disagreements with the letter and spirit of the law.[i]

Although John Yoo will discussed more below (and please note that it is possible that Yoo’s view of prosecutorial discretion is also very limited and close to Sandefur’s even though Yoo’s language on the issue does not appear as rhetorically restrictive as Sandefur’s above), Yoo’s recent National Review Online essay, “How to Check the President,” raises an important point about the Take Care Clause (Article II, Section 3 above) that is relevant for our discussion here. Yoo argues that Take Care was understood to be part of the Founder’s rejection of the English monarch’s dispensing power:

Basing themselves on centuries of English law, precedent, and practice, the Framers had consciously denied the president any authority to “suspend” the law. They embodied his duty in Article II, Section 3 of the Constitution, which requires the president to “take Care that the Laws be faithfully executed.”

If time permitted, it would be interesting to consider the history of the dispensing power (that of the British monarch suspending or not enforcing certain laws). To the extent that the Take Care Clause is the Founders’ direct refutation of such power, it is also likely the Founders would reject aggressive instances discretionary non-enforcement (e.g., those like Obama has done), if not also the constitutionality of prosecutorial discretion per se. If this is true, we come closer to the kind of strict interpretation of the Take Care Clause that Sandefur maintains. More will also be said about this tension when considering the more moderate-position of Michael Ramsey below.

Even more restrictive than Sandefur’s strict constructionist view of prosecutorial discretion is Mike Rapport’s suggestion (in “The President Does Not Have a Constitutional Power of Prosecutorial Discretion, Part I”) that the president has no constitutional power of prosecutorial discretion: “I am puzzled as to why people believe that the President enjoys any constitutional power of prosecutorial discretion. Where does it come from? What are the original materials that support it?” After saying this, Rapport attempts (often in response to the affirmative arguments for the power by Judge Brett Kavanaugh when Kavanaugh speaks only for himself in In Re Aiken County) to refute several arguments for this putative power:

The Congress ordinarily has a power to mandate the execution of a law. Judge Kavanaugh writes that “[p]rosecutorial discretion does not include the power to disregard other statutory obligations that apply to the Executive Branch, such as statutory requirements to issue rules, or to pay benefits, or to implement or administer statutory projects or programs.” And certainly this is correct. It would be very surprising if the President could choose not to pay someone their social security benefits. If Congress passes a law that mandates the closing of a prison, that is required. If Congress passes a law that requires the executive to issue a particular regulation, it must do so.

So what is different in cases of prosecutorial discretion? (Before exploring this question, let me add that one can draw a distinction between federal civil laws and federal criminal laws. Are people arguing for prosecutorial discretion as to criminal actions only or also for civil actions? It is not clear what they arguing, but the arguments might differ somewhat. For now, I will largely focus on criminal violations.) 

If the President is required to enforce other federal laws, then why is there said to be prosecutorial discretion for criminal laws?

Mike Rapport Continues:

One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion: 

The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial. So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.

Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power. 

This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.

After attempting to eliminate the possibility of discretion being tied to the power to pardon, Rapport (in “The President Does Not Have a Constitutional Power of Prosecutorial Discretion, Part II”) takes aim at the claim that such a power can be found within the Founders’ separation of powers schema whereby Congress cannot mandate that the president prosecute violators:

Another argument made by Judge Kavanaugh is that eliminating prosecutorial discretion would involve the legislature exercising executive power:

The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. [Citing Montesquieu and Federalist No. 47] After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive).

Once again, I think this argument does not follow. It is probably the case that
Congress cannot pass a law saying that the President must prosecute a particular person for violation of a crime. But that does not mean that Congress cannot pass a law saying that the President must bring an action against all persons where there is a probable cause to believe that they committed a particular crime. In this case, the President makes the decision as to whether there is probable cause, but there is no prosecutorial discretion. And if there are sufficient funds to finance all the actions, then the President must bring them.

Based on such reasoning, Rapport concludes simply that discretionary power exists merely by convention and precedent, but it is not inherently constitutional:

The main argument that I have seen for prosecutorial discretion is that executives traditionally have been given this power. But that hardly makes it constitutionally required that they possess it. It makes sense to give the executive prosecutorial discretion because it is hard for the legislature to pass a sensible law that would regulate these matters. But that does not mean the legislature cannot take the discretion away in particular cases or constrain it various ways.


C. The Moderate-Discretion Positions:

Such strong positions for and against the constitutionality of prosecutorial discretion serve as bookends for the range of more moderate-discretion positions. One example of this, which is almost identical to the above-mentioned Judge-Kavanaugh position, Rapport contests, is Michael Ramsey’s argument (in “More on Prosecutorial Discretion and the Dispensing Power Michael Ramsey”). This is developed dialectically and must be extracted from Ramsey’s own debate with various scholars. One, however, can see part of his position in the following passage that distinguishes between Lincoln’s suspension of habeas corpus and Obama’s delaying the ACA employer mandate:

The difference between President Obama’s action and President Lincoln’s action is that the former is declining to enforce a statute against private parties, whereas the latter (arguably) declined to recognize a constitutional protection for private parties.  In terms of constitutional protection of liberty, the latter is a serious concern; it is less clear why the former should be.  One might think that liberty is enhanced by a broad presidential power to decline to enforce statutes; the result would be that restrictions on individual liberty require the concurrence of two separate branches — something that fits well with the framers’ idea of structural protections of liberty.

Here Ramsey is more disturbed about Lincoln’s suspension of habeas corpus because such action failed “to recognize a constitutional protection for private parties” and, hence, was a threat to “constitutional protection of liberty.” Moreover, Ramsey suggests “that liberty is enhanced by a broad presidential power to decline to enforce statutes” and, hence, that such prosecutorial discretion is actually favorable. Finally, he implies that this discretionary power could be constitutional in the sense of being intended by the Framers: “the result would be that restrictions on individual liberty require the concurrence of two separate branches — something that fits well with the framers’ idea of structural protections of liberty.”

Ramsey also suggests that the Judge-Kavanaugh-speaking-only-for-himself part of In Re Aiken County includes the view that prosecutorial discretion is one of the president’s constitutional powers, and Ramsey quotes Kavanaugh to elucidate this. The following is a more extended version of the same passage that Rapport also quotes (see above):

That, I take it, is the point of Judge Kavanaugh’s observations (In re Aiken County, pp. 15-16):

The Executive’s broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior – more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law. The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. See THE FEDERALIST NO. 47, at 269 (James Madison) (Clinton Rossiter ed., rev. ed. 1999) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”); 1 MONTESQUIEU, THE SPIRIT OF LAWS bk. 11, ch. 6, at 163 (Thomas Nugent trans., 1914) (“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”). After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive).

Here Ramsey (unlike Rapport’s quoting of Kavanaugh) includes Kavanaugh’s full quotation from Federalist No. 47 and, then, Montesquieu. These quotations, in turn, show how the Framers might have been concerned with separating the execution of laws from the task of legislating laws for the purpose of preventing “tyranny”—i.e., tyrannical laws that threaten individual liberty. This corroborates Ramsey’s and Kavanaugh’s point that prosecutorial discretion could have been conceived by the Framers as one of the executive powers and, hence as being constitutional on originalist grounds.

Ramsey further elucidates his position when criticizing Charles Krauthammer’s claim (which is similar to Yoo’s below and Sandefur’s above) that “presidents are forbidden from” engaging in discretionary non-enforcement when this involves “doing so for reasons of mere policy.” Krauthammer argues that such policy-oriented non-enforcement “mocks the separation of powers.” To which Ramsey answers: “And yet … does it ‘mock[ ] the separation of powers’?  Or (speaking here just of the President declining to enforce restrictions on private parties) does it implement the separation of powers by providing an independent check on the legislature?” Here, then, Ramsey again suggests that prosecutorial discretion could be a functioning part of the separation of powers via giving the president a “check” on Congress.

Despite such comments, however, Ramsey still recognizes a tension between prosecutorial discretion as presidential power and the limits placed on this via the Take Care Clause:

In sum, there is substantial tension between the President’s duty to faithfully execute the law (which was, as Professor Rosenkranz says, the framers’ rejection of the by-then-discredited dispensing power) and the idea of prosecutorial discretion as a check on a tyrannical legislature (as expressed by Judge Kavanaugh).  The problem is that both ideas seem well-rooted in founding-era thought.  I’m not sure why liberty-oriented commentators such as Professor Rosenkranz favor the former over the latter.

Here Ramsey mentions, just as Yoo does, the connection between “the President’s duty to faithfully execute the law” (the Take Care Clause) with “the framer’s rejection of the . . . dispensing power.” Furthermore, Ramsey suggests that this presidential duty to the “faithfully execute the law” is in tension with “prosecutorial discretion,” which Ramsey views the Founders as understanding to be “a check on tyrannical legislature.” Regarding this tension, Ramsey believes that “both ideas seem well-rooted in founding-era thought,” which implies that both may have claim to originalist justifications. This probably suggests that Ramsey understands the tension as both creating constitutionally grounded prosecutorial discretion, but also limiting it.

The criticism of Krauthammer above provides a nice transition for considering the limited prosecutorial discretion position of John Yoo (in “Executive Overreach”). He, like Krauthammer, claims that the president can avoid enforcing laws if he or she believes that a law is unconstitutional:

The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.

Presumably, Yoo must engage in some juggling here. On the one hand, the purpose of his writing is to refute Obama’s discretionary non-enforcements. On the other hand, Yoo needs to avoid damaging his and his Republican colleagues’ long-fought-for positions about the president having significant powers over war and foreign policy due to the Vesting Clause. Yoo’s strategy, in turn, entails separating two types of non-execution: (1) non-execution performed for the sake protecting the Constitution (especially “laws that infringe… on the executive’s constitutional powers, particularly when it came to national security,”); and (2) non-enforcement via prosecutorial discretion. Yoo’s understanding of the latter appears to be more limited than that of Ramsey and Somin. Moreover, he suggests that constitutionally correct prosecutorial discretion (as he understands it) is also more limited than what is being practiced by the Obama Administration:

The second exception is prosecutorial discretion, which is the idea that because of limited resources the executive cannot pursue every violation of federal law. The Justice Department must choose priorities and prosecute cases that are the most important, have the greatest impact, deter the most, and so on. But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law — especially where, as here, the executive branch is enforcing the rest of immigration law. 

Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.

So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.

Here a president is understood to be empowered (with prosecutorial discretion) to make limited judgments about enforcement such as “choos[ing] priorities and prosecut[ing] cases that are the most important, have the greatest impact, deter the most, and so on.” But, according to Yoo (and as already suggested by Krauthammer), a president should not (via employing this limited power) “refus[e]… to carry out federal law simply because he disagrees with Congress’s policy choices.”

It is interesting to note that Somin (in “In Praise of Obama’s New Immigration Policy”) criticizes Yoo (and, by implication, Yoo’s fellow nationalist-Republicans like Krauthammer) for drawing a distinction between acceptable discretion via “choos[ing] priorities and prosecut[ing] cases that are the most important” versus unacceptable discretion in the form of choosing to not enforce laws based on policy disagreements:

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Somin also objects to Yoo’s criticism that Obama’s employment entails “say[ing] that he will not enforce an entire law.” According to Somin, Obama is not doing this. Somin argues that Obama’s so-called Deferred Action for Childhood Arrivals (June 2012), for example, merely formed guidelines for not deporting illegal immigrants under 31 who had come to the U.S. as children and met other limited criteria. Hence, that executive action did not fail to enforce “an entire law” on immigration:

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

This passage further shows the extensiveness of discretionary power that Somin attributes to the presidency: a president could even avoid enforcing an entire law if he deemed it insufficiently important relative to other laws.


II. Precedent as Grounds for Obama’s Prosecutorial Discretion:

Another basis for defending the president’s prosecutorial discretion is recognition that other presidents have acted similarly. Somin (as we have already seen in “Obama, Immigration, and the Rule of Law”) employs this type of argument in defense of Obama’s recent actions:

Moreover, past presidents such as Ronald Reagan and George H.W. Bush have systematically exempted large numbers of illegal immigrants from deportation, including some 1.5 million people in the case of Bush. That does not by itself prove that Obama is acting legally; perhaps Reagan and Bush were undermining the rule of law as well. But it does at least provide an important precedent, especially since few in either party claimed that the prior administrations’ actions were illegal at the time they were done.

A more detailed account of this is found in a recent open-letter from numerous law professors who are defending the legality of President Obama’s November 20th actions:

As examples of the exercise of prosecutorial discretion, numerous administrations have issued directives providing deferred action or functionally similar forms of prosecutorial discretion to groups of noncitizens, often to large groups. The administrations of Presidents Ronald Reagan and George H.W. Bush deferred the deportations of a then-predicted (though ultimately much lower) 1.5 million noncitizen spouses and children of immigrants who qualified for legalization under the Immigration Reform and Control Act (IRCA) of 1986, authorizing work permits for the spouses.19 Presidents Reagan and Bush took these actions, even though Congress had decided to exclude them from IRCA.20 Among the many other examples of significant deferred action or similar programs are two during the George W. Bush administration: a deferred action program in 2005 for foreign academic students affected by Hurricane Katrina,21 and “Deferred Enforcement Departure” for certain Liberians in 2007.22 Several decades earlier, the Reagan administration issued a form of prosecutorial discretion called “Extended Voluntary Departure” in 1981 to thousands of Polish nationals.23 The legal sources and historical examples of immigration prosecutorial discretion described above are by no means exhaustive, but they underscore the legal authority for an administration to apply prosecutorial discretion to both individuals and groups.

In contrast, those opposed to Obama’s recent order have developed distinctions to differentiate Bush’s and Reagan’s actions from Obama’s. Jan Ting, for example, argues the following:

The precedent most frequently cited by those who defend Obama’s executive immigration order is a ruling on immigration by President George H. W. Bush in 1990. In this, Bush exercised prosecutorial discretion in favor of a large number of spouses and minor children of immigrants who had benefited from the immigration amnesty enacted by Congress four years earlier, in 1986. President Bush, unlike Obama, was working out the implementation of an amnesty statute already enacted by Congress. Having worked in the first Bush administration, I recall that the administration was in the middle of negotiations with Congress over what became the Immigration Act of 1990, which ratified the administration’s earlier action by creating visas for the spouses and minor children.

Similarly, a recent Washington Post piece refutes the Obama Administration’s claims that the large number of anticipated illegal immigrants who will likely be covered by DHS’s new program is proportional to the number that was anticipated at the time of George H.W. Bush’s executive order in 1990.

Readers can judge for themselves whether such arguments are persuasive in relation to the question of prosecutorial discretion’s legality. When evaluating this, however, it seems relevant to question whether the behavior of past presidents acting either within or beyond their constitutional powers via employing discretion (which will depend upon whether discretion is part of the presidential office’s constitutional authority) helps elucidate what is legally permissible for the current and future presidents. If, for the sake of argument, Mike Rapport is correct in claiming that prosecutorial discretion is not a constitutional power of the presidency and if there is no other legitimate basis for assuming that a president is legally authorized to act with such discretion, then past presidents who employed such discretion were probably acting unconstitutionally–i.e., illegally. How could such a fact serve as a relevant precedent that somehow renders legal similar actions by current or future presidents?  If such reasoning is sound, then proceeding on to an examination of another possible basis for recognizing the legality of prosecutorial discretion seems more prudent.


III. Congressional Delegation of Power:

Before considering specific congressional grants of discretion to the president, it is helpful to understand the significance of such delegations of power. Whether or not there is a constitutional power to prosecutorial discretion implied in Article II, such discretion could be greatly augmented by the Congress’s statutory law. Important critical questions that can be posed about this. And this is especially true from an originalist perspective given how such delegations likely weaken the 1789 Constitution’s separation of powers and undermine the nondelegation doctrine that the Founding generation employed to guard Congress’s Article I legislative powers. However, such bygone doctrines and concerns have not been a weighty part of the federal governmental system since Congress, the Court, and the executive branch ceased to defend and/or hastened to ignore them during the New Deal and beyond. Regardless of the existence and strength of a possible Article II power of prosecutorial discretion, Congress has dramatically increased the president’s (and the entire executive branch’s) discretionary powers via statute, and it will probably do so again.

Given such a federal context, it is not surprising to learn, as was already mentioned when discussing Somin, that existing immigration laws have extended significant discretion to the president. This, in turn, raises the question of whether such congressional delegations legally enable a president to creatively enforce such laws–e.g., in a manner similar to what is now being attempted by the Obama Administration. Consider the following claims from Shikha Dalmia’s Washington Examiner article:

Margaret Stock, a Republican immigration lawyer and a Federalist Society member, notes that such accusations don’t appreciate that all this is fully authorized by those laws. “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president,” she explains, a point also emphasized by the nonpartisan Congressional Research Service in its 2013 brief. “Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.”. . .

Moreover, offering work permits isn’t some further step. It’s part of the deferral process. Once the president officially defers action against some folks (or offers them parole-in-place, which allows them to live in the United States with oversight) they automatically become eligible for work authorization under the Immigration Reform and Control Act of 1986 and driver’s licenses under the Real ID Act of 2005. . . .

Sure, Obama is hinting at going further. But nothing he’s proposing comes close to exceeding the powers Congress has granted him, let alone constituting an “extraordinary abuse of power.”

In fact, notes Stock, he could go even further and offer asylum to the Central American kids lining up at our borders, instead of sending them back as he has been promising to do. Section 207 of the INA gives him the authority to declare a humanitarian emergency and hand refugee status to all of them – and then some. And this wouldn’t be unprecedented, either.

Another affirmative account of the president receiving discretion from federal statutory laws is found in the above-mentioned open-letter from the law professors:

Focusing first on statutes enacted by Congress, § 103(a) of the Immigration and Nationality Act (“INA” or the “Act”), clearly empowers the Department of Homeland Security (DHS) to make choices about immigration enforcement. That section provides: “The Secretary of Homeland Security shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens . . . 8 INA § 242(g) recognizes the executive branch’s legal authority to exercise prosecutorial discretion, specifically by barring judicial review of three particular types of prosecutorial discretion decisions: to commence removal proceedings, to adjudicate cases, and to execute removal orders.9 In other sections of the Act, Congress has explicitly recognized deferred action by name, as a tool that the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of abuse, crime or trafficking.10 Another statutory provision, INA § 274A(h)(3), recognizes executive branch authority to authorize employment for noncitizens who do not otherwise receive it automatically by virtue of their particular immigration status. This provision (and the formal regulations noted below) confers the work authorization eligibility that is part of both the DACA and DAPA programs.

The letter continues by discussing how such statutorily granted discretion empowers the executive branch in relation to immigration:

Based on this statutory foundation, the application of prosecutorial discretion to individuals or groups has been part of the immigration system for many years. Longstanding provisions of the formal regulations promulgated under the Act (which have the force of law) reflect the prominence of prosecutorial discretion in immigration law. Deferred action is expressly defined in one regulation as “an act of administrative convenience to the government which gives some cases lower priority” and goes on to authorize work permits for those who receive deferred action.11 Agency memoranda further reaffirm the role of prosecutorial discretion in immigration law. In 1976, President Ford’s Immigration and Naturalization Service (INS) General Counsel Sam Bernsen stated in a legal opinion, “The reasons for the exercise of prosecutorial discretion are both practical and humanitarian. There simply are not enough resources to enforce all of the rules and regulations presently on the books.”12 In 2000, a memorandum on prosecutorial discretion in immigration matters issued by INS Commissioner Doris Meissner provided that “[s]ervice officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process,” and spelled out the factors that should guide those decisions.13 In 2011, Immigration and Customs Enforcement in the Department of Homeland Security published guidance known as the “Morton Memo,” outlining more than one dozen factors, including humanitarian factors, for employees to consider in deciding whether prosecutorial discretion should be exercised. These factors — now updated by the November 20 executive actions — include tender or elderly age, long-time lawful permanent residence, and serious health conditions.14


William Galston’s recent Wall Street Journal editorial supplements the above accounts. Here Galston describes a congressional act of meta-delegation to the executive branch via the 1946 Administrative Procedure Act. Through this, Congress developed procedures for reviewing and empowering discretion in executive regulation-making:

After what the House Judiciary Committee described as a period of “painstaking and detailed study and drafting,” Congress passed the Administrative Procedure Act (APA), which has served ever since as the legal charter of the modern administrative state. 

In general, the APA gives the executive branch wide discretion, especially in creating rules for implementing laws. If Congress establishes clear priorities for enforcing the laws it enacts, the executive branch is obligated to honor them as best it can, consistent with the resources Congress provides for this purpose. When Congress does not establish such priorities or fails to appropriate sufficient resources to implement them, the matter is (in the language of the APA) “committed to agency discretion.”

Such general statutory authorization of executive discretion in conjunction with the above-mentioned immigration specific authorizations suggests that a lion share of a president’s discretion has been created by and hinges on relevant statutory law (possibly more so than on an Article II power of discretion). Moreover, as an aside, one could speculate about whether Obama’s past reluctance to negotiate with and/or concede to the demands of the Republicans in the House was due, in part, to Obama knowing that he already had a final trump in the form of the discretion previously granted by Congress to the executive branch.

Be that as it may, the notion that a president like Obama has been given significant discretionary power by Congress and, hence, probably even has room to manipulate such power in radical and possibly illegal ways (albeit, the latter scenario is obviously not authorized by statute or case law, but the wide range of permitted discretion can increase the possibility of such maneuvering) is chilling. And, as Josh Blackman has observed, such concerns raise questions about Congress’s tendency to both (1) delegate too much “legislative” power to the president and executive branch in general and (2) fail to check presidents and from employing their power in problematic and probably illegal ways. This problem of a dysfunctional Congress is also on display in its relations with agencies throughout the executive branch. Based on Michael Greve’s recent work, one might even be tempted to infer that our last tether to 1789 might ultimately snap given Congress’s failure to maintain effective supremacy over its power delegations by not providing needed oversight and intervention in the executive’s making of federal code.

Before docile surrender, however, some are appropriately critiquing President Obama’s recent order in relation to immigration law. In a recent New York Times editorial, Yale Law Professor Peter Schuck suggests that Obama’s order is illegal given the boundaries today’s immigration law:

In the Immigration and Nationality Act, Congress carefully limited prosecutorial discretion by allowing the president to waive exclusions and deportations only under narrowly defined conditions. The act also granted the president broad power to suspend the entry of “any class of aliens” he finds detrimental to the national interest — but, significantly, did not give him corresponding authority to legalize “any class” of undocumented people he thinks deserve it.

According to Schuck, then, the immigration laws have not given Obama the kind of discretion presumed by his recent executive order and, hence, Obama’s order is an illegal and impeachable act (albeit, Schuck prudentially argues against impeachment). (Thanks to Ken Masugi for discussing Schuck’s argument in “Defining America Down“)


IV. Case Law

Another issue in the controversy over Obama’s increasingly selective enforcement of immigration law (via his prosecutorial discretion) is the question of compatibility with relevant case law. Here it is helpful to understand the relevance of federal court rulings for presidential discretion. The Court is often congruent with Congress on this issue, at least in its enabling (via not preventing) Congress to delegate significant powers and discretionary authority to the president and the executive branch. Moreover, the Court has directly affirmed prosecutorial discretion in Heckler v. Chaney, which still serves as leading case law for such issues. William Galston discusses this in his recent Wall Street Journal editorial: “In a decision joined by seven other justices, Justice William Rehnquist noted that, ‘This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.'”As Galston also notes, the Court in Heckler v. Chaney asserted a “’general presumption of unreviewability of decisions not to enforce’,” hence, setting a high bar for challenging prosecutorial discretion. Nevertheless, the Court did create a series of tests in Heckler and other related cases that would prompt judicial review, and more will be said about that below. What is notable about such considerations is how the Court has both empowered and, yet, also set a very high limit on the executive’s prosecutorial discretion. The Court has provided a means for checking abuses of executive discretion, but the rogue executive must commit abuses in the few particular ways envisioned by the Court in order for this check to be realized.

We will return to these issues shortly, but first it will be helpful to examine specific cases that affirm the president’s discretion in prosecuting immigration violations and that relates to the recent executive order. Defenders of the President Obama’s recent executive order have argued that Obama’s action was in keeping with the Supreme Court’s decisions in Arizona v. United States (2012) and Reno v. American-Arab Anti-Discrimination Committee (1999):

Federal courts have also explicitly recognized prosecutorial discretion in general and deferred action in particular.15 Notably, the U.S. Supreme Court noted in its Arizona v. United States decision in 2012: “A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all . . . .”16 In its 1999 decision in Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court explicitly recognized deferred action by name.   This affirmation of the role of discretion is consistent with congressional appropriations for immigration enforcement, which are at an annual level that would allow for the arrest, detention, and deportation of fewer than 4 percent of the noncitizens in the United States who lack lawful immigration status.17

Such considerations, then, seek to show congruence between the Court’s approval of prosecutorial discretion related immigration cases and Obama’s recent executive order.

On the other side, however, the Obama Administration is seeking to prove that DHS’s new program does not merit Court review and possible rejection. Thus, its recent memorandum produced by the Office of Legal Counsel (OLC) argues that the Department of Homeland Securities’ deferred action program positively satisfies the Court’s various tests from Heckler v. Chaney (1985) and other related cases.

Josh Blackman, however, argues that the most difficult challenge for the OLC’s position entails proving that the new program conforms with a fourth test elucidated in cases related to Heckler v. Chaney. The OLC’s description of this fourth test is as follows:

Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that “single-shot nonenforcement decisions” almost inevitably rest on “the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676–77 (emphasis omitted). Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute “general polic[ies] that [are] so extreme as to amount to an abdication of [the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all “general policies” respecting non-enforcement are categorically forbidden: Some “general policies” may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining that an agency’s use of “reasonable presumptions and generic rules” is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses “special risks” that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.


According to Blackman, the difficulty here will be “to explain how the Administration’s blanket policy of non-enforcement for those who meet certain criteria fits within Heckler’s requirement for an individualized assessment.” The DOJ’s Office of Legal Counsel argues that the DHS’s program accomplishes this, and in making this argument (as Blackman discusses below) the OLC relies on precedent from Reno v. Flores (1993):

Based on Reno, the OLC memo explains that “some ‘general policies’ may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” This is how OLC justifies the President’s new immigration policy, as well as DACA. The memo explains what approaches are permissible: “General policies” that “provide a framework” that allows the government to make “individualized, discretionary assessments” about whether or not to enforce the deportation laws. The rule, if it can be so simply stated, is that applying “reasonable presumptions and generic rules,” pursuant to a “general policy” is permissible, so long as it involves “some level of individualized determination” with “case-by-case discretion.”

Blackman, however, is skeptical about whether DHS and the Obama Administration have in reality created a true framework of “’general policy’” that will actually yield “’individualized determination’ with ‘case-by-case discretion.’”:

The last, best hope of a blanket non-enforcement policy is the appearance of an “individualized assessment.” 

I emphasize “appearance,” because it is not clear the policy President Obama announced recently employs an actual “individualized assessment.” While the OLC’s theory seems consistent with precedent — and OLC went out of its way to do so — it remains to be seen whether the policy operates in accordance with this theory. 

To use a historical example, consider President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA). As OLC noted in their memo, they “orally advised” the Administration that “class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Specifically, the memo warned that “granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria” would be problematic. Secretary Janet Napolitano’s June 2012 memo, announcing DACA, provided that “USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis.” This is very similar language to Secretary Johnson’s memo.

Despite paying lip service to discretion, according to a Brookings report, only 1% of applicants were denied deferrals. I could not find any explanation for why, under the capacious standards set by DHS, the denial rate was even this high. A 1% denial rate seems awfully close to “automatic” relief.


Blackman continues his critique by suggesting that the DHS’s new program is likely to yield similar blanket results of “‘automatic’ relief” (not individualized, case-by-case evaluation) that Department of Homeland Security’s previous deferred action program, the DACA, accomplished:

Here, the “individualized determination” is based on policies the Obama Administration itself created out of whole cloth. . . . Whatever deference may be owed to the statute passed by Congress, and implemented by INS in Reno, does not exist for President Obama’s unilateral executive action.

OLC lists the factors to consider for IAEA , as explained in a Draft Memo by U.S. Citizenship and Immigration Services, cited in the OLC Memo (available here):

Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014)

These factors are equally capacious as those under DACA, and are likely to yield a similar denial rate. Secretary Jeh Johnson provides absolutely no guidance of what this “exercise of discretion” should be, and what the grounds are for rejecting an application. . . .

OLC explains that “Some ‘general policies’ may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” It is unclear how this policy does anything more than pay lip service to “individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” By its own terms, the President’s policy seems to flunk OLC’s approach. The President has in mind a group he wants to exempt from the law, and created a policy to do just that. Further, from a practical perspective, if DACA is any guide, this “exercise of discretion” is not particularly meaningful.

With respect to the future applications of up to 4 million immigrants, only 24 Field Offices — whose workers we are told are extremely overworked — are expected to manage all of those applications. It’s not hard to imagine that this individualized assessment quickly turns into a rubber stamp. It cannot be the rule of law that the President can create criteria that automatically apply to millions, then instruct his agents to check off a few boxes that will always be checked, and call it an individualized assessment. The policy is designed to exempt everyone who correctly signs up. This is not an instance of executive discretion, but of clerical approval. Such a ministerial task seems inconsistent with the type of analysis required by Heckler.

If Blackman’s criticisms are accurate, then it is possible that the DHS’s new program is not compatible with governing case law and will merit judicial review. In this way, the Court’s high bar for challenging the legality of the president’s prosecutorial discretion could be met.


V. Conclusion:

Although the point of this essay has been explication, several conclusions can be derived through reviewing the above arguments. First, Rapport’s position that prosecutorial discretion is really grounded in de facto, but not constitutional, delegations by Congress to the president (rather than something inherent in the president’s Article II powers) is probably the most in keeping with likely intentions of the 1789 Founders. This seems true because his argument is in keeping with a certain notion that dominated the ratification debates: all powers of the federal government are delegated powers and, hence, limited to the bounds of their delegation, which is what was intended by those who made the delegations— the “We the People” who in 1789 ratified the Constitution. Given how the ratification debates were often marked by Federalists reassuring Anti-Federalists of the proposed Constitution’s limited nature and how the proposed Constitution did not grant any federal power beyond those delegated within text (e.g., Hamilton’s reassurances about “necessary and proper” being a mere “tautology” in Federalist No. 33), one struggles with difficulty to maintain that the relevant Founders (the majorities within the state ratifying conventions) believed they were granting a vast array of implied powers beyond those specified in the actual Constitution. With this in mind, it seems difficult to maintain that the executive has an unspecified Article II power for prosecutorial discretion. Instead, it seems much more plausible that Congress, as Rapport suggests, just allows the president such discretion because of this is necessary for passing “a sensible law.” And, hence, that the president’s constitutional discretion is probably just limited to making judgments about probable cause.

Even more, Rapport’s position is also corroborated when considering the claims of Ramsey and Yoo that the Framers’ inclusion of the Take Care Clause was an intentional rejection of executive authority to suspend laws (the dispensing power) as the British monarchs had done. If the Framers considered and rejected the idea of the president being able to suspend laws and even included a clause within the Constitution to direct him not to do this, then the notion that the president has a constitutional power to engage significant prosecutorial discretion in the manner argued by Somin, probably Ramsey, and Judge-Kavanaugh-speaking-for-himself is on very thin ice.

Here, however, one qualification is appropriate. Ramsey’s points are well taken. The Founders were concerned about protecting liberty and preventing tyranny, and it is worth further considering whether the Founders could have advanced both goals through intending the president to have the power of prosecutorial discretion just as they intended the president to have the power to pardon (albeit, this raises the obvious question of why the Founders did not make prosecutorial discretion an explicit presidential power given that they did so with the power to pardon). If this hypothesis could be proved, then there might be a basis for an originalist interpretation of the president having the kind of prosecutorial discretion argued for by Somin and more tentatively by Ramsey.

Second, if Rapport’s position is correct, then the constitutionality of Obama’s recent order will not be found in prosecutorial discretion as an Article II presidential power. Rather, its constitutionality must stem from congressional delegations of discretion and, then, such discretion’s compatibility with relevant case law. And considering these questions, in turn, raise larger questions about the constitutionality of the current delegations of power from Congress to the executive branch.

Third (and related to the second conclusion just above), regardless of (arguendo) the possible elements of legal credibility to Obama’s recent order in relation to prosecutorial discretion, larger constitutional and political science questions remain about how presidential non-enforcement could threaten the Madisonian separation of powers system and contribute to a federal regime dominated by the executive branch. And this latter observation by itself could suggest how far removed we are from the true original understanding of the 1789 Constitution.

Fourth, Somin’s position and Ramsey’s (and that of Judge-Kavanaugh-when-he-speaks-only-for-himself) arguments are interesting for their libertarian implications, which (at least) Somin seems to make no bones about ideologically intending. Readers who consider Somin’s various articles (from the above links) will recognize how he, in addition to admiring the humanitarian ends of Obama’s executive solution to the immigration crisis, seems greatly impressed with the possibility that strong prosecutorial discretion could be a solution to the problem of federal code gravely over criminalizing daily life. Somin sees long-range salubrious potential in such a presumed presidential power, and the vigor of his fight at the present time may also be aimed at securing such a power for more libertarian oriented presidents to come. Hints of this libertarianism can also be seen in Ramsey’s discussion (which is largely derivative of Judge Kavanaugh’s analysis) of discretion and the pardon powers being presidential means of preserving individual liberty, but it is far less explicit compared to Somin. Perhaps this is due to Ramsey seeking to be more bound to originalist jurisprudence than Somin. Ramsey finds originalist grounds for seeing the president as having prosecutorial discretion via noting evidence that the Founders (e.g., the influence of Montesquieu’s insight as see, for example, in Federalist No. 47) were concerned about the liberty implications of lodging the power to legislate and the power execute in the same hands. In contrast, although Somin makes appeals to originalism in critiquing the immigration laws, one senses that this is intended more for persuasive/polemical effect, rather than an expression of his own deep commitments.

Fifth, it is important to consider the possibility of there being a significant consensus among the positions of Yoo, Sandefur, Krauthammer, and various others about constitutionally authorized prosecutorial discretion by the president being very limited. Before Judge Kavanaugh presented his own more libertarian position in In Re Aiken County, which is adopted by Ramsey (see above), Kavanaugh (when writing for the court as a whole and, hence, having to subordinate his own individual view) articulated the conventional understanding of discretion:

Our analysis begins with settled, bedrock principles of constitutional law. Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.

Those basic constitutional principles apply to the President and subordinate executive agencies. And they apply at least as much to independent agencies such as the Nuclear Regulatory Commission. … (Note: This quote is taken from “Judge Brett Kavanaugh on the Dispensing Power and Prosecutorial Discretion Michael Ramsey,” but see full opinion here.)

This position of “settled, bedrock principles of constitutional law” seems very close to the positions of Yoo, Krauthammer, and probably Sandefur considered above; hence, such scholars/public-intellectuals might be more representative of the conventional view. And libertarian positions like those of Somin, Ramsey, and Kavanaugh-speaking-for-himself-alone are more likely outliers. Moreover, if the Obama Administration’s executive order practically entails more expansive prosecutorial discretion (regardless of how the Administration semantically describes and justifies its actions), then such an order is also an outlier relative to the possible conventional understanding.

In addition to the above considerations about the debate on prosecutorial discretion and Obama’s particular discretionary non-enforcement, one needs to further study the particular legal arguments presented in the Obama Administration’s OLC memorandum justifying the president’s November 20th executive order. And I hope to pursue this in a sequel essay.

Peter Daniel Haworth, Ph.D., is Editor-in-Chief of Nomocracy in Politics and Director of the Ciceronian Society.


Endnotes (most “citations” to outside sources are in the form of hyperlinks embedded within the above essay):

[i] In response, Somin argues that Sandefur’s exclusion of policy assessments, as opposed to other types of discretionary judgments that will inevitably involve prioritizing types of criminal violations, is unsupportable: “The judgment of which crimes are the “severest” necessarily rests in large part on policy and moral considerations. Thus, in a world where, due to budgetary constraints and the enormous scope of federal law, the president can only prosecute a small fraction of all violators, he can legitimately choose to prosecute those offenses he considers most severe based on policy and moral judgments. That is true in the case of drug laws, and it is equally true in the case of immigration law. Indeed, it is more true in the case of the latter, given the broad discretion Congress has delegated him.” As we will also see in this essay, Somin makes a similar argument against John Yoo.



17 Responses to ““Fallout from Obama’s Order: Debating the Legality of Prosecutorial Discretion as a Presidential Power,” By Peter Haworth”

  1. Accounting Office of Michael T.R. Martin, P.C.

    ….”he can legitimately choose to prosecute those offenses he considers most severe based on policy and moral judgments.”

    Moral judgment is broader than policy, at least policy assumes moral views, and in this the president has been given the highest power a man can have by the people (i.e., to choose what is good for the people). In this case for people not legally under his power, but living here subject to his authority which he is being merciful not just. He would be just in enforcing the law, and as difficult a decision it is, that would be his duty. Otherwise, he must justify his act of mercy to the people that trust him with this immense power.

    It’s really not an easy judgment call, but now he’s got a bigger issue for him personally. I mean it would have been easier just to sign off on the bill, and just washed his hands clean.

    My opinion is that he is making a good decision with work permits. People that are good workers are needed. Not that we should just give our jobs away, but in this situation, an exception, it makes sense since these people are already here.

  2. gabe


    A comment on the first part (Somin):

    Somin’s position appears to be “Since we pass too many laws (an indication that far too much power has accrued to the central government) let’s just go ahead and provide even more power to the central government by *vesting* in the executive the *prerogative* power formerly associated with monarchy.”

    Only from the mouths of academics!!!!!

    Clearly, the Take Care Clause was intended as means of limiting prerogative abuse and such a concern was present in the minds of the Framers given George III’s actions towards the colonies as well as the critiques of certain members of Parliament.

    Careful, Professor Somin, we may have need to rename the Vesting Clause as the Prerogative Clause if your position is adopted.

  3. gabe


    Are you referring to Mike Rappaport (from LLB) in Sect B or is this some other fellow, Rapport?

    Following Kavanaugh, one could ask, “Why pass any criminal statute at all, if the Executive has unlimited lattitude to ignore it? The requirement to prosecute is implied in the very nature of the statute – any discretion must be based upon exigent circumstances and those circumstances must include a faithful attempt to execute even in the face of certain other constraints.

    That being said (again, I am reading this essay piecemeal) I have argued that the President could accomplish what he is attempting via the Pardon Power. Isn’t this a plenary power with the only limit being that the Executive may not pardon an individual who has been impeached. Politically, it may not make sense (but the Big O does not seem to care); however, is there anything in the Constitution that would so limit the Executive from a blanket pardon?

    • Peter Haworth

      Gabe, yes on Mike Rapport; I included the first name at the beginning but have just also added to a conspicuous place to avoid more confusion. I will respond to your substantive comment soon.

  4. gabe


    An excellent essay – as extensive as anything else I have seen. You really did “take care” that the case be “faithfully” examined.

    I guess I am a little disappointed in somin’s *polemical* arguments as it seems to be a cover for advancing a particular policy preference. again, I do not see the logic of advancing a perfectly valid critique of expansive Federal power (via an excess of federal laws) and attempting to curtail that power accrual by ADDING additional power to the Federal government via a grant of near monarchial power to the Executive.
    Just flat out bewildering – but i guess what they say is true: sometimes it is hard to distinguish between a libertarian and a progressive.

    Anyway, fantastic piece. Will link over at other sites if approriate.


    • Peter Haworth


      Thank you for the encouraging comments, and thanks for spreading the word about the essay. With respect to your comments about Somin, I agree that his view seems prompted by normative/ideological concerns, rather than pure nomocratic focus on preserving the actual law that exists. Michael Ramsey’s more (but still not pure) originalist approach to a similar position is much better in this regard. In fairness to Somin, however, there are important normative reasons for his approach and conclusions, and these likely haunt liberty-loving legal theorists in the current period. We have both (1) regressed so far from the 1789 parchment and, in turn, (2) realized a de jure legal authoritarianism (in the sense of how the unaccountable additions to federal code and the omni-bus legislation that creates even more opportunities for agency code-makers) that scholars like Somin are tempted to manipulate the textual and institutional resources to revive needed lost-liberty within the political order. The late George Carey interpreted Publius as defining tyranny per se to be the concentration of all (or even most) governmental powers (legislative, executive, and judicial) in the same hands. Such a government was tyrannical regardless of whether the concentrated powers were actually directed at depriving individual liberty because, in such a non-separated-powers state, the one party holding power could effectively coerce conformity to his or her will. Since our federal system is now largely dominated by the executive, we are much closer to the tyranny feared by Publius (according to Carey’s interpretation). The massiveness of federal code that makes us all (prosecuted or non-prosecuted) federal criminals is a real problem that Somin seeks to remedy. Such over-criminalization (even when not prosecuted) is truly liberty-depriving because it renders us captives to the federal government: the f.g. could penalize anyone at will via citing violations of federal code that plague every nook of daily life. In such a reality of concentrated power in the hands of the executive and its concomitant regulations that make us all legally guilty and possible future cell-mates, people are not really free to think and act within their full range of ethical alternatives; instead, they must often refrain as a preventative to becoming targeted by a federal government that can selectively apply its insane rules and penalties on those who challenge its will. One could continue considering such implications ad nauseam, and they undoubtably motivate libertarians like Somin to seek radical correctives like effective presidential nullification via claims to a mythical constitutional power of expansive prosecutorial discretion.

      • gabe


        I suspect that you are correct in regards to the task that Somin and others have set for themselves. It is quite clear that something needs to be done.
        My concern, as always, is that in our attempt to correct an obvious defect, that the corrective not simply add to the extent of the defect. It would appear that somin is, ultimately, predicating his *fix* on the hope that this new power will not be abused by some future miscreant Executive. while understandable, viewing our progress (?) since 1789 does not inspire hope in me that such will be the case.
        Alternatively, I remain hopeful that somewhere, somehow, right thinking will again prevail. In some sense what may be needed is a *re-firing* of the Common Mind / imagination of the “cives” (Oakeshott’s term). We, as a people, and as a consequence of modern / post-modern rationalism lack an imagination; our sustaining myths have been superseded by the cold efficiency (such as it is) of materialist reasoning; as a consequence we too often look to *parchment* correctives or as in Somin’s case, attempt to invert the defect into a corrective by applying it to itself. I would rather that we retake the initiative and advance the imaginative capacity of the cives.

        take care

  5. John E. Jenkins

    Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA).
    Criminal violations of the INA include, e.g., 8 U.S.C. §1324, which addresses the bringing in and harboring of certain undocumented aliens; §1325(a), which addresses the illegal entry of aliens; (8 U.S.C. § 1325(a) (2000) declares an alien’s unsanctioned entry into the United States to be a crime.
    Neither the Executive branch nor the Judicial branch legislated “our nation’s immigration laws in the Immigration and Nationality Act (INA).
    The question, entertained in this post, is the President‘s sanctioning’ of “an alien’s unsanctioned entry into the United States – a crime — under (8 U.S.C. § 1325(a) (2000”?
    The Executive branches’ illegal, including criminal violations of the INA, is ‘sanctioning’ the (entering) bringing in and harboring of undocumented aliens.
    Nowhere in the Immigration and Nationality Act (INA) is there a delegation, authorizing the President, to redefine the INA Act without legislative authority.
    Gabe is correct when he states, the “…remedy is impeachment – and it is abundantly clear that it is, and WAS intended, as a political remedy for political abuses.”
    Respectfully, John
    (Facebook, author of The Tribute)

    • Peter Haworth


      The article is an examination of several issues and perspectives on prosecutorial discretion. It is an attempt to understand relevant issues, not advocate a position. I presume readers can infer my opinions, preferences, etc., from other past posts. This essay has a political science in orientation.


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