Across a range of contexts, federal courts have crafted doctrines that limit judicial second-guessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement's "unsuitability" for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the "political question doctrine": while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine--"textual assignment" and "judicial manageability"--usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry.
This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering "deferred prosecution agreements" in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.
What authority do federal courts have to review executive nonenforcement choices? On the one hand, the Supreme Court has deemed prosecutorial discretion an "exclusive" and "absolute" executive authority, (1) interpreted the Administrative Procedure Act (APA) to presumptively bar judicial review of nonenforcement, (2) and severely limited Article III standing to challenge government inaction. (3) On the other hand, the Court has indicated that agencies cannot "simply ... disregard statutory responsibilities," (4) suggested that they cannot adopt policies that "abdicat[e]" enforcement, (5) and at least entertained the possibility of tort damages for failures of enforcement. (6) What is more, the Court has repeatedly coupled assertions of executive authority with descriptions of enforcement discretion as "unsuitable" for judicial review, (7) leaving it unclear whether executive nonenforcement authority is unreviewable because it is absolute, or only absolute insofar as it is unreviewable. While generally insulating executive nonenforcement from judicial scrutiny, the case law thus carries important ambiguities of scope and rationale.
Clarifying the boundaries of judicial power over executive enforcement has nevertheless gained new urgency. Depending on how various preliminary questions are resolved, the Supreme Court may well address the issue this term in litigation challenging controversial immigration nonenforcement initiatives. (8) At the same time, litigation percolating in lower courts has raised questions about prosecutorial "deferred prosecution agreements" (DPAs), an increasingly significant executive practice in which the government forgoes prosecution in exchange for the defendant's acceptance of alternative reform conditions. (9) In both contexts, critics have pushed for a broader judicial role, despite courts' historic reluctance to intrude on executive enforcement decisions, yet few commentators have grappled adequately with the particular challenges that judicial review of enforcement-related questions presents.
This Article proposes a framework for nonenforcement's reviewability--one rooted in considerations of "suitability" for review rather than notions of preclusive executive prerogative. In prior work, I have addressed the scope of executive nonenforcement authority in its own right and directly questioned the origins and validity of a supposed preclusive nonenforcement prerogative. (10) Here, I build on this account by exploring reasons why executive enforcement obligations may nonetheless defy complete judicial elaboration. In particular, although courts have often invoked notions of Article II prerogative to justify their passivity with respect to nonenforcement, (11) I argue that institutional limitations on courts--limitations with a broader resonance in constitutional and administrative law doctrines--provide a cogent descriptive and normative justification for judicial deference to executive nonenforcement.
The Constitution by its terms obligates the President to "take Care that the Laws be faithfully executed." (12) Yet courts confront very real practical and institutional challenges in ensuring faithful execution of prohibitory statutes by enforcement officials. To begin with, directly compelling an enforcement suit in any particular case would raise acute separation-of-powers concerns, as it would collapse the constitutional separation of judicial and executive power and compromise the court's neutrality in adjudicating the resulting lawsuit. Beyond this particular formal problem, moreover, insofar as enforcement officials must pick and choose between cases because they cannot do everything, courts will rarely have objective benchmarks for assessing whether enforcement agencies are focusing on the right priorities, or indeed whether they are genuinely doing their best at all. The upshot is that exercise of executive nonenforcement authority, like certain other core executive functions, is effectively a political question, in the peculiar sense of the "political question doctrine"--it is an area where institutional limitations on courts place a gap between what executive officials ideally should do and what courts will require from them. What is more, the twin criteria used to identify political questions more generally, "textual assignment" to a political branch and absence of "judicially manageable standards," (13) provide key guideposts for the limits on judicial power over executive enforcement. 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 framework may account descriptively for much of the key current case law but also carries important normative implications. First, the framework suggests that whatever the limits of the judicial role with respect to non-enforcement, those limits do not ultimately define executive obligations. The U.S. Justice Department's own Office of Legal Counsel (OLC) recently recognized this distinction in its important opinion on one of the Obama immigration initiatives; courts should as well. (14) Second, the framework supports a broader judicial role in some areas. Tracing limits on judicial review to problems of textual assignment and judicial unmanageability may support exercising broader review when those particular problems are absent. For reasons discussed further below, that is true with respect to some current immigration programs as well as DPAs and some other policies such as a controversial Bush Administration environmental program. Such government actions should not be categorically unreviewable, even if courts ultimately uphold them on the merits. Finally, and most tentatively, the framework may have implications for standing analysis. By addressing Article II concerns about judicial oversight of enforcement more directly, a political question framework may support rethinking case law that indirectly protects such prerogatives through constitutional limitations on Article III standing.
In advancing these arguments, my main contribution is to trace nonenforcement's unreviewability to institutional limits on courts, rather than any more absolute conception of executive prerogative. Prior scholarship has tended either to advocate broader judicial review of nonenforcement (15) or else to read key decisions as enabling presidential administration by leaving enforcement decisions to raw politics. (16) My claim is that executive enforcement obligations instead fall within the family of executive obligations that are principally matters of political accountability and conscience rather than judicial enforcement, but that are genuine legal obligations nonetheless. Approaching the issue from this angle leads me to draw lines with respect to judicial review of nonenforcement that are similar to lines I drew in prior work with respect to executive obligation itself. In particular, in both contexts, I distinguish policies that effectively license prohibited conduct from policies that merely set internal priorities for enforcement. I emphasize here, however, that for institutional reasons this line is subject to judicial enforcement in only the clearest cases. As a result, agency nonenforcement is effectively immune from judicial reversal in many contexts where the agency's fidelity to statutory policies could legitimately be questioned as a matter of first principles.
A secondary aim is to place current litigation over nonenforcement, and in particular the politically charged litigation over current immigration initiatives, into a broader legal context. The challenged programs are novel in scale and significance, but the central questions they present--what...