Law Enforcement as Political Question

Zachary S. Price*

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.

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© 2016 Zachary S. Price. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, University of California Hastings College of the Law; JD, Harvard Law School; AB, Stanford University. For helpful comments on earlier drafts, the author thanks Nick Bagley, Will Baude, Eric Biber, Josh Blackman, Abe Cable, Nathan Chapman, John Crawford, Scott Dodson, Jared Ellias, Jean Galbraith, Amalia Kessler, Evan Lee, Peter Margulies, Jeff Powell, David Pozen, Morris Ratner, Daphna Renan, Jane Schacter, Reuel Schiller, and David Takacs, as well as participants in the faculty workshop at George Mason University School of Law. The author is grateful to UC Hastings Provost and Academic Dean Elizabeth Hillman for generous support and Allison Pang for excellent research assistance.