by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law
The debate over President Obama’s action on immigration has raised a difficult and enduring issue: the nature and scope of the executive’s prosecutorial, or perhaps more accurately, enforcement discretion. The existence of such discretion is inevitable and, in many circumstances, desirable. Consider the familiar example of the enforcement of speed limits. Anyone who travels the nation’s highways knows that law enforcement officers do not pull over drivers who slightly exceed the posted speed limit. We would expect a driver to be upset to get a ticket for going 56 mph in 55 mph zone. To some extent this practice of ignoring slight violations of speeding laws results from scarce enforcement resources. While a police officer is occupied with issuing a ticket to a speeder, that officer is unable to pull over other speeders. An officer who tickets the hypothetical driver for going 56 mph risks allowing a dangerous speeder, say someone going 90 mph, to evade detection. This risk wouldn’t exist if there were an unlimited number of police officers at the roadside able to take over while one officer pulls over the 56 mph driver. Given the existence of scarce enforcement resources, police officers have concluded that refraining from enforcing speed limits against slight violators actually better promotes the goal of the speed limit – highway safety.
On the other hand, it is easy to see how this discretion might be abused. The power could be used to undermine the force of existing laws and thus, in effect, to repeal or revise those laws. Imagine, for example, the President orders the Social Security Administration to cease processing social security payments because doing so would conserve scarce federal resources. This order would be clearly illegal. It would violate individual rights (for qualified persons to receive the payments) and an affirmative statutory command to the executive branch (to make the payments).
What are we to do when the exercise of discretion does not fall at one of these extremes? This is a truly important issue. At its heart, the issue involves the proper relationship between the executive and legislative branches. The conundrum is expressed in the Constitution’s Take Care Clause (which directs that the President “shall take Care that the Laws be faithfully executed”). This Clause simultaneously imposes a duty on and recognizes power in the President. On the one hand, the Clause forbids the President to refuse to enforce the laws (I do not mean to address the context where statutes conflict with one another or with the Constitution). On the other hand, the idea of “faithful execution” must include some room for the exercise of discretion to determine what course will faithfully execute the laws. This theoretical conundrum has real practical resonance. Conservatives today see the President flouting the recent elections and pursuing a regulatory policy that is not only inconsistent with those results but represents the sort of broad policymaking that one would ordinarily expect to see in a statute, not in unilateral executive action. The President, on this view, is usurping the legislative power. This is not a frivolous concern. Flipping the political valence, consider a future, conservative President taking the position that he or she is clothed with discretion to refrain from prosecuting violations of certain federal firearms laws or environmental protections. Many of those expressing approval of President Obama’s order would be outraged at the usurpation of a President who unilaterally re-writes the law of environmental protection or firearms safety.