The final problem of enforcement discretion is how executive officials should understand their role when enforcing federal criminal laws and other statutes that can’t possibly be fully enforced with available resources.
Here recent debates over federal marijuana enforcement and immigration policy are key examples. As more and more states have legalized marijuana use either for medical reasons or even across the board, proponents of liberalization have pressured the Justice Department to suspend enforcement of overlapping federal criminal restrictions on marijuana possession. In a series of policy statements (available here, here, and here), the Department has made clear that it is unlikely to prosecute offenders who are complying with state law unless their conduct implicates significant federal interests.
Regarding immigration, the Department of Homeland Security recently announced a controversial program of “Deferred Action for Childhood Arrivals” (“DACA”). Under this policy, certain undocumented immigrants who entered the United States as young children may obtain a promise of “deferred action” — effectively a promise of non-enforcement of removal statutes — for renewable two-year periods. Immigrants with this status may lawfully work in the United States; in effect deferred action carries a promise not to enforce sanctions against employers who hire these immigrants.
These examples are hard to think about because they both involve areas of law — federal criminal law and immigration — where complete enforcement of the law is effectively impossible and, as a result, the law isn’t written in a way that conforms to the public’s likely policy preferences.
Overbroad conceptions of executive discretion may have helped bring about this troubling legal structure to develop in the first place. The law on the books might better conform to public expectations if executive officials had maintained a stronger norm of full enforcement. It certainly seems likely that there would […]