The judicial role in constraining presidential nonenforcement discretion: the virtues of an APA approach.

• Author: Walters, Daniel E.
• Position: Administrative Procedure Act - Symposium: The Bounds of Executive Discretion in the Regulatory State

INTRODUCTION I. THE DEBATE OVER PRESIDENTIAL NONENFORCEMENT DISCRETION A. Formalist Critiques B. Functionalist Critiques II. THE PROBLEM WITH JUDICIAL OVERSIGHT OF NONENFORCEMENT DISCRETION III. THE SOLUTION: JUDICIAL APPLICATION OF THE APA A. The Structure of APA Inaction Review and the Limited Domain of Heckler v. Chaney 1. Avoiding Heckler 2. Overcoming Heckler B. The Functionality of APA Inaction Review 1. Inherent Virtues 2. Comparative Virtues a. Jurisdictional Safety Valves b. Doctrinal Safety Valves i. The Artificial Action/Inaction Distinction ii. The Flexibility of Arbitrariness Review IV. DEMONSTRATING THE POWER OF THE APA APPROACH A. Massachusetts v. EPA B. Mach Mining v. EEOC C. Texas v. United States D. Discussion CONCLUSION INTRODUCTION

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction (1) in enforcing (2) statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." (3) Concerns about the excessive use of this kind of discretion to refrain from enforcement extend back to the constitutional debates, as historically oriented scholarship has now shown. (4) The Take Care Clause appears to have been more or less an explicit effort to disclaim the "dispensing" and "suspension" powers that the King of England claimed for himself leading up to the Glorious Revolution. (5) But the issue has become more immediately relevant in the wake of several high-profile instances where the Obama Administration announced prospective nonenforcement policies on immigration, health care, and marijuana, among other things. (6) Critics deftly lay out several problems with this trend: it appears to be somewhat inconsistent with the original intent of the Framers; (7) it has been conducted mostly covertly, with little in the way of transparency and accountability; 8 and, perhaps worst of all, depending on one's political priors, it entrenches a reactive bias in policymaking, (9) particularly when divided government and legislative gridlock make it nearly impossible to develop new regulatory programs the old-fashioned way through new legislation or even new regulations. (10) The issue is also now far more vexing, insofar as the ubiquity of law and endemic budgetary crises make some degree of government inaction both inevitable and desirable. Most agree that the President should have the authority to decline to enforce the law in certain situations where equity or resource constraints prevent full enforcement of the law. (11) But instances of policy-oriented nonenforcement--i.e., the purposive use of presidential nonenforcement to accomplish policy changes that would not be possible through the normal channels of legislation--are more controversial. Some now argue that this kind of exercise of executive discretion is not the kind of thing the Constitution permits or the kind of thing we ought to encourage as a matter of good governance. (12)

This Article challenges those writing and practicing in the area of presidential inaction to ask and answer a difficult question that inevitably follows: What role can and should courts assume in addressing potentially unconstitutional presidential inaction? While there are of course some constitutional problems that have been entrusted to the oversight of only the political process, (13) ordinarily, where there is a constitutional problem, courts play at least some role in addressing it. (14) However, those who have identified policy-oriented presidential inaction as a problem have yet to offer any workable judicial rule or standard to address that problem. Some have articulated constitutional rules that could, in principle, be applied by the courts, (15) but, in practice, would wreak such havoc on the judiciary that even their proponents recognize that they are unlikely to be seriously implemented. (16) Other scholars have urged political process reforms that would serve to manage presidential power in these areas but steer far away from any judicial remedy. (17)

There are two major problems with constitutional review of a President's compliance with the Take Care Clause, both of which are implicit in scholars' reluctance to assign a role to the courts. First, such review would invite an overwhelming number of complaints and would be subject to such difficult line-drawing problems that courts would, in effect, be forced to make their review either exceedingly lenient or exceedingly stringent simply to curb the demand for review. Neither situation would be ideal, since Presidents inevitably need to make highly contextual choices about priorities and resource allocation, and they clearly can abuse that discretion at times. A rigid rule would be either overinclusive or underinclusive, and a flexible standard would be impossible to administer, given the prevalence of nonenforcement decisions in the modern administrative state. Second, even if courts were able to surmount these institutional capacity hurdles and find a suitable constitutional rule or standard, they would still be unlikely to actually affect executive nonenforcement discretion in any meaningful way. Presidents are not typically constrained by courts or Congress in separation-of-powers disputes because, in the particulars of administration, they possess far greater expertise, nimbleness, and even accountability than the other branches. Since Congress and the courts are aware of their own limitations in this regard, they are inherently hesitant to intervene in anything remotely resembling core executive tasks, such as decisions about when to enforce the law. (18)

Given these barriers to developing an appropriate judicial response on the constitutional level, we would do well to avoid reinventing the wheel. In fact, we can avoid it. As a practical matter, challenges to the exercise of nonenforcement discretion are ordinarily posed as challenges to agency inaction. The President may involve himself more in some agency decisions than others, but ultimately, he can act only through agencies, which are in turn subject to suit under the Administrative Procedure Act (APA). (19) Thus, even disputes about nonenforcement going to the heart of the President's agenda are typically posed as, or are easily translatable into, an administrative law problem rather than a constitutional law problem. (20) As it turns out--and as I will demonstrate in this Article--administrative law has not turned a blind eye to the problems identified in this new wave of scholarship. Rather, it has developed an elaborate, often quite nuanced, and ultimately effective approach to dealing with the institutional problems associated with judicial policing of executive nonenforcement. Courts, in reviewing agency inaction under the APA, in effect "translate" (21) constitutional values in particular cases through a form of review that leaves them both far less vulnerable to an unmanageable caseload and far more capable of competing with Presidents in the most important cases. Jurisdictional safety valves--such as the requirement of final agency action and doctrines of prudential standing--as well as complexities of administrative law doctrine allow courts to be selective in filtering out routine nonenforcement cases in ways not possible if they were applying a freestanding constitutional analysis under the Take Care Clause. (22) Allowing courts to selectively review presidential nonenforcement discretion in turn enables them to carry more authority when they do intervene. (23) In short, an administrative law approach to the root problem of nonenforcement is far better poised to actually make a difference.

This is not to say that an administrative law approach to the constitutional problem is perfect. Much more work remains to hone the doctrine and bring it into accord with the nascent constitutional values implicated in this debate. (24) But it is a start, and one that I argue carves out an attractive and institutionally feasible method for courts seeking to navigate the middle ground between the extremes of separation-of-powers formalism and open-ended functional balancing. Recognizing how APA review of agency inaction works to optimally reduce presidential nonenforcement discretion speaks to the important ongoing debate about what to do with policy-oriented presidential inaction. We need not settle on untested political process reforms--such as encouraging presidential coordination and disclosure of nonenforcement decisions, or nudging Congress to write more specific statutes (25)--which are unlikely to take hold or to constrain the exercise of nonenforcement discretion. (26)

This Article proceeds in four parts. Part I reviews the burgeoning debate around purposive presidential inaction, recounting the formal and functional reasons that constitutional separation-of-powers scholars have come to doubt the constitutionality and desirability of the practice. Part II articulates the problem with this growing consensus: there has been too little attention paid to the role that courts might have to play in addressing problematic uses of presidential inaction. Most importantly, efforts to invigorate the Take Care Clause have been too inattentive to the strains on judicial capacity that would be posed by such a development. Part III offers an argument that the administrative law of agency inaction is better suited to take on the difficult questions surrounding nonenforcement. Such review could do the work that blunter constitutional instruments and the political process cannot do alone, all while insulating courts from strains on their institutional capacity. Finally, Part IV reviews three important recent federal court decisions, each demonstrating how courts are conducting APA review to translate constitutional separation-of-powers values through a review...