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The President Does Not Have a Constitutional Power of Prosecutorial Discretion: Part II

(For Part I, see here.)

Another argument made by Judge Kavanaugh is that eliminating prosecutorial discretion would involve the legislature exercising executive power:

The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. [Citing Montesquieu and Federalist No. 47] After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive).

Once again, I think this argument does not follow. It is probably the case that
Congress cannot pass a law saying that the President must prosecute a particular person for violation of a crime. But that does not mean that Congress cannot pass a law saying that the President must bring an action against all persons where there is a probable cause to believe that they committed a particular crime. In this case, the President makes the decision as to whether there is probable cause, but there is no prosecutorial discretion. And if there are sufficient funds to finance all the actions, then the President must bring them.

It is easy to forget what the dispensing power was all about. One of the core cases involved James II’s decision not to enforce the law requiring a religious oath to be taken in order to hold certain offices, such as military command. Sure such a law would be unconstitutional in the U.S., but because of religious liberty, not because it takes power away from the executive. That the dispensing power in this case could have been seen as protecting individual rights did not make it legal.

The main argument that I have seen for prosecutorial discretion is that executives traditionally have been given this power. But that hardly makes it constitutionally required that they possess it. It makes sense to give the executive prosecutorial discretion because it is hard for the legislature to pass a sensible law that would regulate these matters. But that does not mean the legislature cannot take the discretion away in particular cases or constrain it various ways.

Reader Discussion

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on August 20, 2013 at 10:47:31 am

This is indicative of a such a pro-statist mindset, I can hardly digest it.

Government by nature has discretion in what it prosecutes. It is almost a "natural right" of government to NOT screw people, a right they actually use a lot and yet, not nearly enough for many victimless crimes.

The goal of laws is NOT to put people in jail, it's to change behavior or prevent behavior. The state by nature must bring a case and has the option of not doing so and the person in charge gets to make that call, all the way up the food chain.

It's like you're claiming the President hasn't the power to breathe, because Congress hasn't given it to him.

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John Ashman
on August 20, 2013 at 13:28:28 pm

"The executive Power shall be vested in a President of the United States of America. "

I don't understand how this could be any more clear.

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John Ashman
on August 20, 2013 at 14:55:23 pm

John / Mike:
“The executive Power shall be vested in a President of the United States of America. ”
And this Executive shall see "that the laws are faithfully executed."
I like Mike's approach as to discretion being limited to finding(s) of probable cause - which occurs rather frequently, doesn't it.

With respect to discretion being necessary because of lack of funding - perhaps, we should eliminate a vast array of "hidden" law which entraps many citizens - to include the six year old lemonade entrepreneurs or the Benghazi "video man."
Discretion also poses the problem of an "unequal application" of the law(s). How do you surmount this?

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gabe
on August 20, 2013 at 15:09:43 pm

90% of Federal laws at this point are unconstitutional and so the President is in a no-win situation, as was HAL 9000. He can't uphold the Constitution while enforcing unconstitutional laws. The Constitution itself is the overarching law of the land. The validity of the execution of laws rests in the law being actually Constitutional, which is almost certainly not the case at this point. Certainly not with most drug laws.

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John Ashman
on August 20, 2013 at 15:25:32 pm

Also, the courts are tasked with handling inequalities in the law.

Though they fail miserably at this.

The problem is two many laws, and mostly unconstitutional ones, so something has to give. And until it does, prosecutorial discretion is simply the unavoidable result.

Remember that the laws of the US are not there to jail people, but to organize several states into a functioning organization. The Federal government has no business prosecuting probably 95+% of the people it prosecutes, as they are not offenses against the US government itself or over something it has legal domain.

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John Ashman
on August 20, 2013 at 16:32:12 pm

John,

It is far from clear that eliminating prosecutorial discretion would be bad from a libertarian point of view. Without prosecutorial discretion Congress would actually have to repeal unpopular or unworkable laws, thus weaking the power of the executive branch.

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Jr
on August 21, 2013 at 04:13:04 am

[...] via The President Does Not Have a Constitutional Power of Prosecutorial Discretion: Part II | Online Lib.... [...]

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Image of » The President Does Not Have a Constitutional Power of Prosecutorial Discretion: Part II | Online Library of Law and Liberty Let's Get Political
» The President Does Not Have a Constitutional Power of Prosecutorial Discretion: Part II | Online Library of Law and Liberty Let's Get Political
on August 21, 2013 at 15:12:53 pm

This is a good point, as saving America may first require bankrupting it, but I do think that it is a pretty big leap to tie the the faithful execution of the law in with prosecuting every single person possible. If the true interpretation must be "if someone is arrested or believed to have violated a federal law, they must be prosecuted" and the President is in charge of making this happen, I think we would be immediately launched into a true civil war.

I believe that the Executive Branch's ability to execute the law as he believes best is the only thing that tempers Congressional ignorance of the Constitution.

As long as Congress believes it has no limits, I am content with the Supreme Court and the President doing everything within or without their power to stop them.

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John Ashman
on November 27, 2014 at 18:03:13 pm

[…] to eliminate the possibility of discretion being tied to the power to pardon, Rapport (in “The President Does Not Have a Constitutional Power of Prosecutorial Discretion, Part II”) takes aim at the claim that such a power can be found within the Founders’ separation of […]

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Image of “Fallout from Obama’s Order: Debating the Legality of Prosecutorial Discretion as a Presidential Power,” By Peter Haworth | Nomocracy In Politics
“Fallout from Obama’s Order: Debating the Legality of Prosecutorial Discretion as a Presidential Power,” By Peter Haworth | Nomocracy In Politics

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.