• Prosecutorial Discretion and the Expansion of Executive Power: An Analysis of the Holder Memorandum

    Prosecutorial Discretion and the Expansion of Executive Power:

    An Analysis of the Holder Memorandum

    by Erin Cady, JD ’16

    Scales of Justice  

    I. Introduction

    President Obama has used executive power to advance policymaking on issues from immigration to national security throughout his Administration, particularly since the Republican Party won a majority of seats in the House of Representatives in 2010. Through the use of executive orders and, more commonly, directives to the numerous federal agencies under his control, President Obama can continue to advance the policies of the government in accordance with his vision while bypassing a hostile Congress.[1]

    One such use of executive power was an August 2013 Memorandum from Attorney General Eric Holder instructing Assistant United States Attorneys (“AUSAs”) across the country to decline to impose criminal charges that would trigger mandatory minimum sentences for non-violent, low-level drug offenders (hereinafter referred to as the “Holder Memorandum”).[2] This article argues that this directive was an abuse of prosecutorial discretion because the categorical nonenforcement of a duly enacted law violates the Take Care Clause of the Constitution, effectively constituting an impermissible second veto by the President. Further, categorical nonenforcement of laws creates systemic problems within the government, leading to policy bargaining with the president rather than among members of Congress, and an eventual erosion of legislative power in favor of the Executive.

    Although the Holder Memorandum was sharply criticized by the National Association of Assistant United States Attorneys,[3] it has largely escaped the forceful political and legal debate that has surrounded President Obama’s use of executive power. Certainly, the President’s nonenforcement of immigration laws for “DREAMers” brought to the United States illegally as children, and the Administration’s intervention in Libya, for instance, are more exciting, controversial topics. In fact, the curtailment of mandatory minimum sentences for low-level drug offenders is hardly controversial at all—there is both public and bipartisan support in Congress to change the criminal code.[4]

    The fact that there is consensus for change in this policy area, however, makes the use of executive power in this instance even more troubling—it suggests that executive power is being used, not because America cannot wait for congressional gridlock to be resolved, but because it is easier to make the change through executive power than through the legislative process set out in the Constitution. Although Speaker of the House John Boehner’s lawsuit against the President appears to be more bluster than a realistic attempt to require the President to enforce the laws, it indicates a major dilemma with the overuse and abuse of executive power: Congress can do very little, save drastic actions, to stop the Executive from gaining power at its expense.

    II. The Holder Memorandum

    In early 2013, the Department of Justice under Attorney General Eric Holder conducted a “comprehensive review” of the criminal justice system and identified five “Smart on Crime” goals to reform the system:

    • “To ensure finite resources are devoted to the most important law enforcement priorities;
    • To promote fairer enforcement of the laws and alleviate disparate impacts of the criminal justice system;
    • To ensure just punishments for low-level, nonviolent convictions;
    • To bolster prevention and re-entry efforts to deter crime and reduce recidivism; and
    • To strengthen protections for vulnerable populations.”[5]

    The second goal of alleviating disparate impacts included “meaningful sentencing reform” and changing charging policies so that low-level, nonviolent drug offenders without significant criminal histories or ties to drug organizations would no longer be charged with offenses that mandate “draconian mandatory minimum sentences,” but would instead receive “sentences better suited to their individual conduct rather than the excessive prison terms more appropriate for violent criminals or drug kingpins.”[6]

    Consistent with the “Smart on Crime” initiative, on August 12, 2013, the Attorney General issued a memorandum to the United States Attorneys and Assistant Attorneys General for the Criminal Division directing prosecutors to decline to charge the quantity of drug that would trigger a mandatory minimum sentence if the defendant met the following criteria:

    • “The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;
    • The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;
    • The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
    • The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.”[7]

    The memorandum cited the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that facts such as the quantity of drug that triggers a mandatory minimum sentence must be pled in the indictment and proved beyond a reasonable doubt.[8] The Department took the stance that Alleyne gave prosecutors control over the application of mandatory minimums, as they can “elect not to plead or prove the trigger amount, even in a case where the facts plainly support it.”[9]

    The tone of the memorandum was respectful and cautious, though the Obama Administration’s disdain for mandatory minimums came through in the rationale for the change: “[l]ong sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.”[10] On the same day that the memorandum was issued, Attorney General Holder gave a speech to the House of Delegates of the American Bar Association (“ABA”) during which he championed the Department’s effort to “recalibrate America’s federal criminal justice system.”[11] Attorney General Holder denounced mandatory minimums as failing to serve public safety “[w]hen applied indiscriminately,” “reduc[ing] the discretion available to prosecutors, judges, and juries,” and “breed[ing] disrespect for the system” by generating “unfairly long sentences.”[12] When mandatory minimums are “applied inappropriately,” Holder continued, “they are ultimately counterproductive.”[13] Almost as an afterthought, Holder mentioned that he and the President planned to work with Congress to pass legislation to reform mandatory minimums for certain drug offenders (despite the fact that his directive had already shifted the policy).[14]

    III. The Holder Memorandum in Context

    The Holder Memorandum is one example of the Obama Administration’s use of “prosecutorial discretion” to refuse to enforce statutes with which the Administration disagrees. Despite the fact that the President denounced the Bush Administration’s executive overreach, and promised, unlike his predecessor, to work closely with Congress,[15] within months after his inauguration, President Obama began refusing to enforce certain federal laws through announcements by his cabinet members and their staff.[16]

    In 2009, for instance, Deputy Attorney General David Ogden announced that the Administration would no longer enforce federal drug law against individuals whose actions complied with state medical marijuana laws.[17] Additionally, after the Senate rejected the DREAM Act in December 2010 and the Republican Party took control of the House of Representatives in January 2011, the President announced that he would use “prosecutorial discretion” to achieve a portion of his policy goals on immigration[18]: a path to citizenship for “dreamers,” or foreign-born children who came to the Unites States illegally as children.[19] A year later, Secretary of Homeland Security Janet Napolitano announced a broader program under the same banner of “deferred action” for “young people who are low enforcement priorities.”[20] Republicans have also criticized the President for his abuse of executive power in delaying enforcement of certain provisions under the Affordable Care Act (“ACA”), altering a congressional mandate for work requirements under the 1996 welfare reform act, and changing compliance requirements in the No Child Left Behind education reform law.[21] A determination of whether the Holder Memorandum can be “reconciled with an appropriate understanding of executive-branch responsibility,” or constitutes a violation of executive power, first requires an examination of the law of prosecutorial discretion.[22]

    IV. The Law of Prosecutorial Discretion

    The presidential power of prosecutorial discretion is based on several Article II provisions, including the Executive Power Clause, the Take Care Clause, the Oath of Office Clause, and the Pardon Clause.[23] Under Article II, the president may decline to prosecute or pardon certain violators of federal law.[24] The Supreme Court has repeatedly affirmed the broad discretion of the Executive Branch, holding that the decision “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”[25] The Court has recognized that “the decision to prosecute is particularly ill-suited to judicial review,” as “[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”[26] There is a distinction, however, between prosecutorial discretion in the narrow context of a defendant suing the government for unjust prosecution (the issue these precedents consider), and the president’s refusal to prosecute specific classes of lawbreakers. Accordingly, it is necessary to examine the Executive’s power in the broader context of the lawmaking scheme to determine if a constitutional issue arises in this case.

    Under Article II of the Constitution, the President must “take Care that the Laws [are] faithfully executed”[27] and follow statutory mandates and prohibitions, “absent a lack of funds or a claim of unconstitutionality that has not been rejected by a final court order.”[28] The Take Care Clause is “naturally read as an instruction or command to the President to put the laws into effect, or at least see that they are put into effect, ‘without failure’ and ‘exactly.’”[29] “[T]he President may not decline to follow a statutory mandate or prohibition simply because of policy objections,”[30] as the Framers of the Constitution believed that the separation of the prosecutorial power from the power to legislate was essential to preserve liberty.[31] Accordingly, the Constitution grants to Congress primacy in lawmaking. Although the President may “recommend to [Congress] Consideration [of] such Measures as he shall judge necessary and expedient,”[32] the President’s role in the legislative process is merely to sign or veto bills that both houses of Congress have approved; with enough votes, Congress can even override the president’s veto.[33]

    V. Prosecutorial Discretion and the Holder Memorandum

    From the text of the Constitution, it seems clear that the Take Care Clause imposes a duty on the president. While other members of the executive branch may “execute” the laws, the “President’s role is to see to it that they do so ‘faithfully.’”[34] In the words of one member of the Constitutional Convention, the Take Care Clause means that the President has the “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which [are] established.”[35]

    Just as the Constitution provides that the executive power is vested in the President,[36] the Constitution also makes clear that “all legislative [p]owers . . . shall be vested in a Congress.”[37] In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“Steel Seizure”), Justice Jackson, concurring, articulated the formula that courts now use to regulate the interactions between Congress and the President. The President’s executive actions receive: (1) greatest deference when he acts consistently with Congress’s authorization; (2) some deference when executive action occurs in the “zone of twilight” in which he and Congress may have concurrent authority; and (3) little or no deference when he takes action contradicting the expressed or implied will of Congress.[38] In the case of the Holder Memorandum, the President’s actions fall under the third category: Congress has clearly expressed its will on the issue, as it passed a statute imposing mandatory minimum sentences on drug offenders. Under this framework, the Executive’s action not to enforce the statute should receive little deference. Indeed, suspending the enforcement of a statute passed by Congress strips the law of practical effect for a certain period of time, violating the principle of legislative supremacy.[39]

    Allowing the President to disregard the framework of the Constitution and ignore statutes duly enacted by Congress in directing his prosecutorial power would “upend [the Constitutional] scheme by giving the President a form of second veto over laws, whenever enacted, that he does not wish to see enforced during his presidency.”[40] Similar to the line-item veto declared unconstitutional by the Supreme Court in Clinton v. City of New York, 524 U.S. 417 (1998), a second veto would gift the President additional bargaining power at the expense of Congress.[41] Consistent with this interpretation, the Supreme Court has held that the idea that the Take Care Clause “implies a power to forbid” the execution of the laws is “a novel construction of the constitution, and is entirely inadmissible.” [42]

    In fact, the situation in this case is potentially even more problematic than the line-item veto. President Clinton was involved in the debates and negotiations for the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1997, the two acts he altered via the line-item veto.[43] Here, the President was not simply cutting an appropriation from the year’s budget act, but was effectively replacing a statute that was negotiated, passed, and signed into law by a prior government with his own, narrower prohibition.[44] As is the case with all unilateral actions, the President need not consult, debate, or even inform any branch of government or constituency prior to taking action.

    The major counterargument to this position is that the policy directive laid out in the Holder memorandum is not an express promise of nonenforcement, but a valid decision by the Executive to allocate scarce resources. Congress and the executive branch alike have long recognized that not every violation of federal law can be prosecuted, and federal prosecutors must set policies for enforcement, even if it means failing to prosecute certain crimes or offenders.[45] Leadership from the Justice Department seems appropriate in these circumstances, as the President and Attorney General can better set comprehensive, nationwide law enforcement priorities than can U.S. Attorneys and Assistant United States Attorneys.[46]

    This argument fails for two reasons. First, the Obama Administration has not presented the Holder Memorandum as a calculated resource allocation. Attorney General Holder’s comments to the ABA, that the Department will “fundamentally rethink the notion of mandatory minimum sentences for drug-related crimes,” suggests that the shift to nonenforcement of mandatory minimums was a policy or value-based decision.[47] Second, there is a distinction between focusing resources on specific crimes ex ante and promising nonenforcement for a certain category of offenders ex post.[48] The Holder Memorandum does not set out a new vision for fighting drug and gang-related crime. Rather, it sets out a new policy for AUSAs to follow after ascertaining whether a defendant is eligible to be charged under a mandatory minimum statute. Further, the Holder Memorandum’s directive is potentially more resource-intensive than the previous policy. It requires AUSAs to determine what the charge would be under the previous policy and then determine if the defendant meets four additional criteria that warrant departure from a mandatory minimum charge.[49]

        a. Consequences of Nonenforcement

    Categorical nonenforcement of duly enacted laws creates systemic problems within the government that are not easily rectified. Categorical nonenforcement both creates an incentive for open policy bargaining with the executive branch rather than policy bargaining within the legislative branch, and fails to hold Congress accountable for its actions. Rather than building consensus within the legislature itself, nonenforcement actually stalls the legislative process by creating incentives for members of Congress to policy bargain directly with the President to create legislation. In the context of immigration reform and the DREAM Act, once President Obama made it clear that he would use executive power to limit immigration actions against “DREAMers,” some senators curtailed their negotiations within the Senate and began bargaining with the President instead. [50] Given the public’s frustration with gridlock in Washington, it is likely that the last thing the public wants is more legislative dysfunction,[51] particularly since there is widespread, non-partisan public support for the elimination of mandatory minimum sentences for non-violent offenders.[52] Furthermore, critics of mandatory minimums should note that nonenforcement fails to hold Congress accountable for passing broad, sweeping statutes. Despite Holder’s claims that he will work with Congress to pass new laws restricting the use of mandatory minimum sentences,[53] by eliminating them by decree, he has quashed any legislative inertia for reform.[54]

    Over time, policies such as the nonenforcement of mandatory minimums will lead to an erosion of legislative power in favor of the Executive, a significant and dangerous violation of the separation of powers. The problem is particularly acute since the executive branch already has a policy-making advantage over Congress. As Alexander Hamilton stated, “the Executive in the exercise of its constitutional powers may establish the antecedent state of things,” or the policy atmosphere that the legislature must work with.[55] Accordingly, the Executive can pressure Congress into legislating in particular areas by “making the status quo undesirable.”[56] If prosecutorial discretion of the sort embodied in the Holder Memorandum becomes commonplace, Congress will not only be pressured by the Executive to legislate in certain policy areas, but will also be encouraged to overregulate under the expectation that the executive branch will step in to counterbalance the regulation with forgiving enforcement policies.[57]

    Overregulation is particularly worrisome in the area of criminal penalties, as Congress has little, if any incentive to retain congressional power. Some commentators argue that Congress actually desires broad prosecutorial discretion to counteract the overcriminalization that occurs when they are pressured into adding or increasing sentences after particularly troubling or gruesome crimes are reported extensively in the media.[58] Collective action problems also make it difficult to enact formal, complex legislation such as criminal penalties. [59] Further, individual members of Congress generally identify more strongly with their political party than with Congress as an institution, and accordingly are likely to support prosecutorial discretion when their party is in the White House, and oppose it when their party is not.[60]

    The congressional predisposition to cede lawmaking power to the executive branch in this area should be concerning to both supporters and opponents of the Obama Administration. Unlimited prosecutorial discretion at the expense (or perhaps even at the behest) of Congress severely restricts the accountability of policy actors from all 535 members of Congress to the sole executive.[61] Indeed, “[u]nlimited discretion in enforcement policy can become a greater threat to personal liberty and security than the mechanical enforcement of the law,”[62] as the President can use his considerable power to veil the extent of his control, making public accountability nearly impossible.[63]

       b. Enforcing Enforcement

    “As far back as Thomas Jefferson’s refusal to grant William Marbury his judicial commission, presidents have resisted carrying out the letter of the law.”[64] The question, then, is how to pressure the Executive into enforcing the laws that Congress has passed. Traditional congressional methods to constrain the Executive have included passing statutes that provide less prosecutorial discretion, withholding confirmation for executive branch nominees, and failing to appropriate funds for the affected agencies until a compromise between the branches can be made.[65]

    For Republicans in the House of Representatives, these methods have proved insufficient to rein in President Obama’s abuse of prosecutorial discretion.[66] Representative Trey Gowdy, Oversight Chairman Darrell Issa, and Judiciary Chairman Bob Goodlatte introduced the Executive Needs to Faithfully Observe and Respect Congressional Enactments (“ENFORCE”) the Law Act of 2014 to provide Congress with the ability to sue the President for using his power of prosecutorial discretion to disregard the law.[67] Although the ENFORCE the Law Act passed the House on March 12, 2014, it was stalled in the Democrat-controlled Senate.[68] A similar bill, the Faithful Execution of the Law Act of 2014, which was meant to extend the requirement that the Attorney General report to Congress all laws he declines to enforce because he believes them to be unconstitutional “to include any Federal officer who implements a formal or informal policy of non-enforcement, regardless of whether it is being done on constitutional or policy grounds,”[69] passed the House the next day but met a similar fate.[70]

    On July 7, 2014, Speaker of the House John Boehner announced that the House would bring a lawsuit against the President to compel him to follow the Take Care Clause, and the House voted to authorize the lawsuit on July 30, 2014. The biggest hurdle for the lawsuit is whether there is standing to sue,[72] though the House as an institution can argue that it was injured, since its “legislative powers have been nullified” by the President’s actions.[73]

    If a federal court considered the case on its merits, it would set up a significant clash among the three branches, “with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.”[74] The courts have generally read their powers narrowly so as to avoid declaring executive actions unconstitutional.[75] The Supreme Court’s prosecutorial discretion precedents of Batchelder and Wayte did leave open the possibility, however, that a federal court might cite “constitutional constraints” such as the separation of powers to limit the Executive’s discretion.[76]

    At least in terms of the mandatory minimum policy articulated in this paper,[77] the Wayte Court’s concerns in applying judicial review of the exercise of prosecutorial discretion[78] should not be implicated here, because the Holder Memorandum already revealed the Executive’s enforcement policy for mandatory minimums. Accordingly, judicial intervention would not undermine prosecutorial effectiveness, chill law enforcement, or change the deterrence value of the criminal law.[79] Further, as the Holder Memorandum does not change the amount of investigation or prosecution costs for these cases—the directive still requires prosecutors to calculate whether defendants are eligible for statutory mandatory minimums and then decline to charge the statutory mandate—a court might find the Executive’s nonenforcement of these laws to be particularly egregious.[80] That said, it seems unlikely that a court would rule in favor of the legislative branch in Boehner’s lawsuit, if only because “a decision allowing [such a] lawsuit to proceed would open the floodgates for Congress and the president to take their political disputes to court—something the Supreme Court has actively tried to avoid.”[81]

    VI. Conclusion

    Throughout this analysis, it has become clear that the President can exercise significant, unchecked nonenforcement power—and President Obama and Attorney General Holder have done so in the case of the nonenforcement of mandatory minimum sentences for non-violent drug offenders. Even if one supports the President’s policies, his actions have created a dangerous precedent for nonenforcement that will exacerbate legislative dysfunction, lead to severe fluctuations in governmental policies between administrations, and create a system in which Congress attacks executive branch policies by suing the President and making its case to the courts.[82]

     


     

    [1] See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, April 22, 2012, available at http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html.

    [2] Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division, Re: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013) [hereinafter Holder Memorandum], 2, available at http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certain-drugcases.pdf.

    [3] Memorandum to the Judiciary Committee, Re: Mandatory Minimum Sentencing 3 (January 31, 2014), available at http://www.naausa.org/2013/images/docs/MandMinSentencingLegOppose013114.pdf.

    [4] See, e.g., Christopher Ingram, Americans Overwhelmingly Agree it’s Time to End Mandatory Minimum Sentencing, Wash. Post, Oct. 10, 2014, available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/10/10/americans-overwhelmingly-agree-its-time-to-end-mandatory-minimum-sentencing (“Support for ending mandatory minimums is widespread among people of different races, genders, income levels, ages. Democrats (81 percent) are slightly more likely to favor ending mandatory minimums than Republicans (73 percent).”); Smarter Sentencing Act of 2013, S.1410, 103th Cong. § 1 (2013). The Smarter Sentencing Act was jointly sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT), and a companion bill in the House also has bipartisan support from Reps. Raul Labrador (R-ID) and Bobby Scott (D-VA). According to Sen. Durbin’s office, the bill would “modernize [] drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent offenses.” Durbin and Lee Introduce Smarter Sentencing Act, U.S. Senate: Dick Durbin, (August 1, 2013), http://www.durbin.senate.gov/public/index.cfm/pressreleases?ID=be68ad86-a0a4-4486-853f-f8ef7b99e736.

    [5] Smart on Crime: Reforming The Criminal Justice System for the 21st Century 2 (August 2013), available at, http://www.justice.gov/sites/default/files/ag/legacy/2013/08/12/smart-on-crime.pdf.

    [6] Id. at 2–3.

    [7] Holder Memorandum, supra note 2, at 2. In a footnote, the memorandum went further, suggesting that, “[i]n some cases, satisfaction of the above criteria meant for low-level, nonviolent drug offenders may indicate that prosecution would not serve a substantial federal interest and that the case should not be brought federally.” Id. at 2 n.3.

    [8] 133 S. Ct. at 2162–63.

    [9] See Frank O. Bowman, III, Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Hous. L. Rev. 1227, 1259 (2014). Others might argue that prosecutors controlled the imposition of mandatory minimums prior to Alleyne by “fact bargaining,” or bargaining with the defense over which facts would be included in the sentencing determination (and which would not). See id. at 1259; William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548, 2559–60 (2004).

    [10] Holder Memorandum, supra note 2, at 1.

    [11] Eric Holder, U.S. Attorney General, Address at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) [hereinafter Holder ABA Speech], available at http://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-annual-meeting-american-bar-associations.

    [12] Id.

    [13] Id.

    [14] See id. at 5–6.

    [15] Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong. 2, at 14 (2014) [hereinafter Hearings] (testimony of Rep. Rice).

    [16] See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 781–83 (2013); George F. Will, Obama’s Extreme Use of Executive Discretion, Wash. Post, Dec. 18, 2013, available at http://www.washingtonpost.com/opinions/george-will-obamas-extreme-use-of-executive-discretion/2013/12/18/656ae4be-680d-11e3-ae56-22de072140a2_story.html; Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong. 2 (2014) [hereinafter Hearings] (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary). Even Justice Scalia joined in the debate. In his dissenting opinion in Arizona v. United States, 132 S.Ct. 2492 (2012), he referenced the DREAM Act and criticized the executive branch for selectively invoking “enforcement priorities” and resource scarcity to change policy. Id. at 2521 (Scalia, J., dissenting).

    [17] Memorandum for Selected United States Attorneys, Re: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana 1–2 (October 19, 2009), available at http://www.justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf.

    [18] Memorandum for All Field Office Directors, Special Agents in Charge, and Chief Counsel, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens 4 (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

    [19] Julia Preston, Students Press for Action on Immigration, N.Y. Times, May 30, 2012, available at http://www.nytimes.com/2012/05/31/us/students-press-for-action-on-immigration.html.

    [20] Memorandum for David Aguilar, Alejandro Mayorkas, and John Morton, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1–2 (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

    [21] See, e.g., Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary); George F. Will, Obama’s Extreme Use of Executive Discretion, Wash. Post, Dec. 18, 2013, available at http://www.washingtonpost.com/opinions/george-will-obamas-extreme-use-of-executive-discretion/2013/12/18/656ae4be-680d-11e3-ae56-22de072140a2_story.html.

    [22] Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 757 (2014) (footnotes omitted).

    [23] See U.S. Const. art. II, § 1, cl. 1 (Executive Power Clause) (“The executive Power shall be vested in a President of the United States of America”); U.S. Const. art. II, § 1, cl. 8 (Oath of Office Clause) (“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”); U.S. Const. art II. § 2 cl. 1 (Pardon Clause) (“The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”); U.S. Const. art. II § 3 (Take Care Clause) (“he shall take Care that the Laws be faithfully executed”).

    [24] U.S. Const. art II. § 2 cl. 1; U.S. Const. art. II § 3.

    [25] United States v. Batchelder, 442 U.S. 114, 124 (1979); see Wayte v. United States, 470 U.S. 598, 607–08 (1985); see also United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”).

    [26] Wayte, 470 U.S. at 607–08. Prosecutorial discretion is not “unfettered,” however, and is subject to constitutional constraints such as the Fourteenth Amendment’s Equal Protection Clause. See id. at 608; Batchelder, 442 U.S. at 125 n.9.

    [27] U.S. Const. art. II § 3 (Take Care Clause). The Clause appears to at least charge the President with the supervision of executive branch members who enforce the laws. See Delahunty & Yoo, supra note 16, at 799.

    [28] In re Aiken Cnty, 725 F.3d 255, 259 (D.C. Cir. 2013).

    [29] Delahunty & Yoo, supra note 16, at 799.

    [30] In re Aiken Cnty, 725 F.3d at 259.

    [31] See The Federalist No. 47, at 269 (James Madison) (Clinton Rossiter ed., 1961).

    [32] U.S. Const. art. II, § 3.

    [33] U.S. Const. art. I, § 7, cl. 2; see also Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 655 (1952) (Jackson, J. concurring) (“The Executive, except for recommendation and veto, has no legislative power.”).

    [34] Delahunty & Yoo, supra note 16, at 800.

    [35] Id. at 802 (quoting 2 James Wilson, Lectures on Law Part 2, in Collected Works of James Wilson 829, 878 (Kermit L. Hall and Mark David Hall, eds., 2007).

    [36] U.S. Const. art. II, § 1.

    [37] U.S. Const. art. I, § 1.

    [38] See Steel Seizure, 343 U.S. at 635–38; cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 693–94 (2008) (analyzing Steel Seizure’s implications).

    [39] Cf. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265, 274 (2013) (nonenforcement “renders the underlying legal requirement effectively void for all cases within the ambit of the policy for as long as the policy remains in effect.”).

    [40] Price, supra note 22, at 690. But cf. In re Aiken Cnty, 725 F.3d at 265 n.10 (stating that the President may exercise prosecutorial discretion and the pardon power on any ground, including constitutionality and policy considerations.).

    [41] 524 U.S. at 447; see Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

    [42] Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 525 (1838).

    [43] Clinton v. City of New York, 524 U.S. at 421.

    [44] Price, supra note 22 at 705.

    [45] See, e.g., id. at 758.

    [46] See id.

    [47] Holder ABA Speech, supra note 11.

    [48] See Andrew Rudalevige, The Letter of the Law: Administrative Discretion and Obama’s Domestic Unilateralism, 12 The Forum 29, 52 (2014).

    [49] Holder Memorandum, supra note 2, at 2.

    [50] Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

    [51] See, e.g., Unprecedently Dysfunctional, The Economist, Sep. 22, 2014, available at http://www.economist.com/blogs/democracyinamerica/2014/09/political-gridlock (“Even discussions about congressional gridlock have come to resemble the gridlock itself, static and tired.”); Jonathan Martin, Voters’ Second Thoughts on Hope and Change, N.Y. Times, Nov. 4, 2014, available at http://www.nytimes.com/2014/11/05/us/politics/voters-second-thoughts-on-hope-and-change-.html?ref=politics (quoting Republican strategist Karl Rove as saying that the 2014 midterm election showed that “[t]he American people . . . sent the message that they really want to get things done” and “[t]hey really do want us to work together.”).

    [52] Ingram, supra note 4.

    [53] Holder ABA Speech, supra note 11.

    [54] Price, supra note 22, at 758–59.

    [55] Alexander Hamilton, Article 2, Section 2, Clauses 2 and 3, in 4 Pacifius-Helvidius Debates, 63, 65 (1793) available at http://press-pubs.uchicago.edu/founders/print_documents/a2_2_2-3s14.html.

    [56] Rudalevige, supra note 48, at 53–54.

    [57] See Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

    [58] See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 546–47 (2001).

    [59] See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 414–15 (2012).

    [60] See id.

    [61] See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 499 (2003).

    [62] Delahunty & Yoo, supra note 16, at 794.

    [63] See Bressman, supra note 61, at 506.

    [64] See Rudalevige, supra note 48, at 52.

    [65] See id. at 55; Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

    [66] Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

    [67] Id. at 8 (testimony of Rep. Gerlach); ENFORCE the Law Act of 2014, H.R. 4138, 113th Cong. (2014).

    [68] ENFORCE the Law Act of 2014, H.R. 4138, 113th Cong. (2014).

    [69] Hearings, supra note 15, at 25 (testimony of Rep. DeSantis).

    [70] Faithful Execution of the Law Act of 2014, H.R. 3973, 113th Cong. (2014). It remains to be seen if Republicans will attempt to pass the bill again in 2015 once they have control of both Houses. See Jerry Markon, Robert Costa & David Nakamura, Republicans Win Senate Control as Polls Show Dissatisfaction with Obama, Wash. Post, Nov. 4, 2014, available at http://www.washingtonpost.com/politics/senate-control-at-stake-in-todays-midterm-elections/2014/11/04/e882353e-642c-11e4-bb14-4cfea1e742d5_story.html.

    [71] See John Boehner, Why We Must Now Sue the President, CNN Opinion, Jul. 7, 2014, available at http://www.cnn.com/2014/07/06/opinion/boehner-obama-lawsuit/; Michael R. Crittenden & Colleen McCain Nelson, House Votes to Authorize Boehner to Sue Obama, Wall St. J., Jul. 30, 2014, available at http://online.wsj.com/articles/house-votes-to-authorize-boehner-to-sue-obama-1406760762. The lawsuit was stripped down to include only the “clearest instance[] of executive branch overreach,” the delays of the ACA’s employer mandate. Accordingly, it does not include any mention of the Holder Memorandum or the failure to enforce mandatory minimums. Peter Suderman, John Boehner’s Lawsuit Against President Obama Probably Won’t Succeed in Court—But it Doesn’t Have To, Reason, Jul. 16, 2014, available at http://reason.com/blog/2014/07/16/john-boehners-lawsuit-against-president.

    [72] See Daniel Newhauser, Boehner Planning House Lawsuit Against Obama Executive Actions, Roll Call, June 24, 2014, available at http://blogs.rollcall.com/218/obama-lawsuit-boehner-house.

    [73] Id.

    [74] Id.

    [75] See Hearings, supra note 15, at 3 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

    [76] Vijay Sekhon, Highly Uncertain Times: An Analysis of the Executive Branch’s Decision to Not Investigate or Prosecute Individuals in Compliance with State Medical Marijuana Laws, 37 Hastings Const. L.Q. 553, 558 (2010).

    [77] As mentioned previously, the Boehner lawsuit does not mention executive overreach in terms of criminal law or mandatory minimums, see Suderman, supra note 71, though if the lawsuit proves successful, it could have an impact on criminal law and the discretion of Attorney Generals and AUSAs in the future.

    [78] See Sekhon, supra note 76, at 559.

    [79] See id.

    [80] See Holder Memorandum, supra note 2, at 2.

    [81] Sam Baker, What Happens if Boehner’s Lawsuit Succeeds?, Nat’l J., Jul. 17, 2014, available at http://www.nationaljournal.com/health-care/what-happens-if-boehner-s-lawsuit-succeeds-20140717.

    [82] See Michael Sant’Ambrogio, The Extra-Legislative Veto, 102 Geo. L.J. 351, 409–11 (2014).

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