Federal Nonenforcement at a Crossroads

Abstract

As a novel aspect of “presidential administration”—the president-centered approach to federal governance discussed in a 2001 article by the future Supreme Court Justice Elena Kagan—broad federal nonenforcement policies have been a major source of controversy in the past decade. As illustrated by the Obama Administration’s expansive nonenforcement policies relating to marijuana, immigration, and Affordable Care Act implementation, recent presidents have recognized nonenforcement’s potential to reshape statutory law to suit an administration’s policy aims. This Article takes stock of this development as it relates to the past three presidential administrations. While advocating a limited view of nonenforcement authority and responding to some arguments for broader approaches, this Article documents the current confused state of both executive practice and judicial case law, offering in particular a critique of the Supreme Court’s 2020 decision in Department of Homeland Sec. v. Regents of the University of California. The Article concludes that federal nonenforcement authority remains at an important crossroads, with potential either to develop into an expansive power to reshape the law through executive action or to remain confined to more limited applications. It urges decisionmakers to embrace the narrower view.

Keywords: prosecutorial discretion, enforcement discretion, DACA, immigration, separation of powers