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Abstract

Across a range of contexts, federal courts have crafted doctrines that limit judicial secondguessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement’s “unsuitability” for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the “political question doctrine”: while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine—“textual assignment” and “judicial manageability”—usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry. This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering “deferred prosecution agreements” in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.

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