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Constitutional limit on the prosecutorial discretion
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The U.S. Constitution can be seen
        a) as imposing two potential limitations
                i) upon the executive branch’s exercise
                        A) of prosecutorial discretion,

        a. one
                i) in cases
                        A) where the Executive decides
                                I) to enforce the law
                                        (a) against particular individuals
                                II) because of their
                                        (a) race,
                                        (b) religion,
                                        (c) exercise of a constitutional right, or
                                        (d) other impermissible factors; and
        b. the other
                i) in cases
                        A) where the Executive adopts a general policy
                                I) of non-enforcement
                                        (a) “which is in effect an abdication
                                                (i) of its statutory duty.”88

Selective Prosecution

In discussing the scope
        a) of the executive branch’s prosecutorial discretion,

1) courts have repeatedly noted that
        a) the determination
                i) as to whether to prosecute

          may not be
                i) “deliberately
                ii) based upon an unjustifiable standard
                        A) such as
                                I) race,
                                II) religion, or
                                III) other arbitrary classification,”89
                                        (a) including the exercise of protected
                                                (i) statutory and
                                                (ii) constitutional
                                                        (A) rights.90

        a) (or other enforcement actions)
        b) that are based upon these factors

1) could potentially be found
        a) to be impermissible,
2) as was the case
        a) in Yick Wo v. Hopkins.


the Supreme Court found that
        a) prosecutors’ practice
                i) of enforcing a state law
                        A) prohibiting the operation
                                I) of laundries
                        B) against only persons
                                I) of Chinese descent

          ran afoul of the Equal Protection Clause.91

In practice, however,

defendants generally find it difficult
        a) to maintain a claim
                i) of selective prosecution

1) because of the executive branch’s prosecutorial discretion.

Because such claims are seen
        a) as “invad[ing] a special province
                i) of the Executive,”

1) courts generally require defendants
        a) to introduce “clear evidence”
                i) displacing the presumption
                        A) that the prosecutor has acted lawfully.92


they must show that
        (1) they were singled out
                i) for prosecution
                ii) on an impermissible basis;
        (2) the government had a policy
                i) of declining
                        A) to prosecute similarly situated defendants
                                I) of other races, religions, etc.; and
        (3) the policy was motivated
                i) by a discriminatory purpose.93

84 See, e.g., Miller v. Albright, 523 U.S. 420, 434 n.11 (1998) (plurality opinion); Fiallo, 430 U.S. at 796; Mathews,
426 U.S. at 82.
85 See, e.g., Arizona, 132 S. Ct. at 2499.
86 Negusie v. Holder, 555 U.S. 511, 517 (2009) (“The Attorney General’s decision to bar an alien who has participated in persecution ‘may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.”); INS v. Abudu, 485 U.S. 94, 110 (1988) (“Although all adjudications by administrative agencies are to some degree judicial and to some degree political ... INS officials must exercise especially sensitive political functions that implicate foreign relations.”).
87 Texas, 106 F.3d at 665 (dismissing a state’s suit alleging that the federal government had violated the constitution and the INA by failing to control illegal immigration, in part, on the grounds that it was a political question). The political question doctrine is based on the notion that courts should refrain from deciding questions that the Constitution has entrusted to other branches of government. See, e.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137, 170 (1803). In determining whether a case entails a political question, courts consider whether there is “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it,” among other things. Baker v. Carr, 369 U.S. 186, 217 (1962).
88 Adams, 480 F.2d at 1162. See also Heckler, 470 U.S. at 832-33 n.4 (finding that judicial review of exercises of enforcement discretion could potentially be obtained in cases where an agency has adopted a general policy that is an “abdication of its statutory responsibilities”).
89 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1977) (finding that a state prosecutor’s decision to indict the defendant as habitual offender after he refused to plead guilty of a felony did not violate the defendant’s constitutional rights).
90 Goodwin, 457 U.S. at 372.

        a) of selective prosecution

1) can be even more difficult
        a) to maintain
        b) in an immigration context
2) because the various prudential concerns
        a) that prompt deference to the executive branch’s determinations
                A) as to whether to prosecute particular criminal offenses

   are “greatly magnified
        a) in the deportation context.”94

In fact,

in Reno v. American-Arab Anti-Discrimination Committee,
        a) discussed above,

the Supreme Court effectively foreclosed many claims
        a) of selective prosecution
        b) in removal proceedings
        c) by finding that
                i) “[a]s a general matter …
                ii) an alien
                        A) unlawfully in this country

                  has no constitutional right
                        A) to assert selective enforcement
                                I) as a defense
                                        (a) against his deportation.”95

The petitioners
        a) in Reno

1) had alleged that
        a) they were targeted
                i) for deportation
                ii) because of the exercise
                        A) of their First Amendment rights.

All belonged to a group
        a) that the government characterized
                i) as an “international terrorist and communist organization,” and

1) they asserted that
        a) the INS did not enforce “routine status requirements,”
                i) such as were enforced
                        A) against them,
                ii) against aliens
                        A) who were not members
                                I) of similarly disfavored groups.96


a majority
        a) of the Court

1) rejected the petitioners’ arguments,
2) in part,
        a) because it viewed “selective prosecution”
                i) as unusual
                ii) even in the criminal context97 and,
3) in part,
        a) because it considered the exercise
                i) of prosecutorial discretion
                ii) to be particularly significant
                        A) in the immigration context,
        b) as previously noted.


the Reno Court did leave open the possibility
        a) that a decision
                i) to remove an alien

          could potentially be struck down
                i) in a “rare case
                        A) in which the alleged basis                
                                I) of discrimination

                          is so outrageous
                                I) that the foregoing considerations can be overcome,”98 and

1) subsequent cases continue
        a) to recognize the possibility
                i) of selective prosecution claims
                        A) in the immigration context.99

“Take Care” Clause

Article II, Section 3
        a) of the U.S. Constitution

1) could also potentially constrain the executive branch’s prosecutorial discretion
        a) in certain cases.

When discussing the scope
        a) of such discretion,

1) some courts have suggested that
        a) situations could potentially arise
        b) where the executive branch
                i) “expressly
                ii) adopt[s] a general policy
                        A) which is in effect an abdication
                                I) of its statutory duty”
                        B) by implementing a blanket ban
                                I) on enforcement
                                        (a) of a duly enacted statute.100

In such situations,

by refusing to enforce certain aspects
        a) of a statute,

1) the executive branch could potentially be said
        a) to have
                i exceeded the permissible scope of
                        A) prosecutorial or
                        B) enforcement
                                I) discretion, and
                ii) violated the President’s duty
                        A) that the “laws be faithfully executed.”101


no court appears to have invalidated a policy
        a) of non-enforcement
                i) founded upon prosecutorial discretion
        b) on the grounds that
                i) the policy violated the Take Care Clause, and

1) one federal appellate court has opined that
        a) “[r]eal or
        b) perceived
                i) inadequate enforcement ...

          does not constitute a reviewable abdication of duty.”102

91 118 U.S. 356 (1886).
92 Reno, 525 U.S. at 489 (quoting Armstrong, 517 U.S. at 463).
93 Armstrong, 517 U.S. at 465.
94 Reno, 525 U.S. at 490. It should be noted, however, that the Reno Court did not hold that discriminatory enforcement of the immigration laws does not offend the Equal Protection Clause, only that Section 242(g) of the INA (8 U.S.C.
§1252(g)) deprives the courts of jurisdiction over such claims.
95 Reno, 525 U.S. at 488.
96 Id. at 473.
97 Id. at 489 (“Even in the criminal-law field, a selective prosecution claim is a rara avis [rare bird].”).
98 Reno, 525 U.S. at 491.
99 See, e.g., Matter of E-R-M & L-R-M, 25 I. & N. Dec. at 522.


according to this court,

to prove such an abdication,

1) plaintiffs must show that
        a) the Executive either
                i) is “doing nothing
                        A) to enforce the ... laws,” or
                ii) has
                        A) “consciously
                        B) decided to abdicate” its enforcement responsibilities.103

Some commentators have suggested that
        a) prosecutorial discretion policies
                i) which could result in the executive branch
                        A) not enforcing the law against a large number of people

          constitute an abdication of statutory duty and,
          thus, violate the Take Care Clause.104

This point has recently been made
        a) by some commentators
        b) with respect to the potentially 1.76 million individuals
                i) eligible to receive deferred action
                        A) under DACA.105


even if the INA were construed
        a) to impose a statutory duty
                i) to remove all unauthorized aliens,

1) the fact that
        a) a large number of persons are favorably affected
                i) by a prosecutorial discretion policy

  might not, per se, suffice
        a) to prove a violation
                i) of the Take Care Clause.

Courts might also consider
        a) the size of the total population
                i) against whom the law could be enforced, as well as
        b) the resources
                i) available for enforcing the law,

1) on the theory that
        a) the President cannot secure full execution
                i) of the laws,
        b) if Congress denies to him adequate means
                i) of doing so. ...

The President performs his full constitutional duty,

1) if,
        a) with
                i) the means and
                ii) instruments
                        A) provided by Congress and
        b) within the limitations
                i) prescribed by it,

        c) he uses his best endeavors
                i) to secure the faithful execution
                        A) of the laws enacted.106


in the case of DACA, for example,

a reviewing court might note that
        a) DACA-eligible aliens represent a fraction
                i) of the estimated 11.5 million aliens
                        A) who are present in the United States
                                I) without authorization,107 and
        b) ICE has the resources
                i) to remove annually less than 4%
                        A) of the unauthorized alien population.108

100 Adams, 480 F.2d at 1162.
101 U.S. Const. art. II, §3. See also Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (“To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”).
102 Texas, 106 F.3d at 667.
103 Id.
104 See, e.g., Crane, Amended Complaint, supra note 3, at ¶ 101 (“The application of ‘deferred action’ to approximately
15% of aliens who are in the United States without authorization is not an exercise of executive branch discretion permitted by the Constitution.”); The Obama Administration, the DREAM Act, and the Take Care Clause, supra note
3, at 2 (“[I]f a President can refuse to enforce a federal law against a class of 800,000 to 1.76 million, what discernible
limits are there to prosecutorial discretion?”).
105 Jeanne Batalova and Michelle Mittelstadt, Migration Policy Institute, Relief from Deportation: Demographic Profile of DREAMers Potentially Eligible under the Deferred Action Policy, Aug. 2012, available at http://www.migrationpolicy.org/pubs/FS24_deferredaction.pdf, at 1.
106 Myers v. United States, 272 U.S. 52, 291-92 (1926) (Brandeis, J., dissenting). See also Heckler, 470 U.S. at 831 (noting that, among the factors that make agency decisions to refuse enforcement generally unsuitable for judicial review, are questions as to “whether agency resources are best spent on this violation or another, ... whether the particular enforcement action requested best fits the agency’s overall policies, and ... whether the agency has enough resources to undertake the action at all”).

The specific form
        a) of discretion
                i) exercised

1) could also potentially play a role
        a) in a reviewing court’s analysis
                i) of whether particular nonenforcement
                        A) policies or
                        B) practices

                  constitute an abdication
                        A) of a statutory duty.

For example,

a court could potentially distinguish
        a) between
                i) determinations
                        A) to delay enforcement actions
                        B) (e.g., granting
                                I) deferred action or
                                II) extended voluntary departure
                                        (a) for a particular duration of time), and
                ii) determinations
                        A) not to take enforcement actions
                        B) (e.g., determining whether
                                I) to commence removal proceedings or
                                II) cancel a notice for an alien to appear
                                        (a) at removal proceedings),
        b) on the grounds that
                i) the Executive contemplates taking action
                        A) in the future
                        B) in the former cases.109


a reviewing court might note
        a) whether the executive branch exercises its discretion
                i) on a case-by-case basis,
                ii) taking into consideration the specific circumstances
                        A) of
                                I) the offense and        
                                II) the individual
                                        (A) who committed it, or
        b) whether it has indicated its intention
                i) not to enforce particular offenses
                        A) at all or
                        B) against large groups of people.

Such distinctions might, however, be difficult
        a) to draw
        b) with practices
                i) like the DACA initiative,
                ii) in which exercises of discretion could be characterized
                        A) as either
                                I) individualized or
                                II) categorical,
                        B) depending upon how the initiative is viewed.

DHS has repeatedly noted that
        a) determinations
                i) regarding whether to grant deferred action

          are to be made
                i) on a case-by-case basis
                ii) for DACA-eligible individuals.110


DHS has also established a broad category
        a) of individuals
        b) (e.g., those
                i) who
                        A) came to the United States
                                I) when they were under the age of 16, and
                        B) are either currently in school or
                        C) have graduated from high school)
        c) who are eligible to request deferred action
                i) pursuant to DACA.111

The existence
        a) of multiple—
                i) sometimes inconsistent—
                ii) enforcement mandates
                        A) from Congress

1) might also factor
        a) into a court’s analysis
                i) of whether particular nonenforcement policies or practices constitute an abdication
                        A) of duty,
        b) particularly in situations
                i) where an agency elects
                        A) to concentrate limited resources
                                I) upon offenders
                                        (a) (or offenses)
                                        (b) that Congress has recently indicated are a priority.

For example,

following the enactment
        a) of the Illegal Immigration Reform and Immigrant Responsibility Act
                i) (IIRIRA),
                ii) which
                        A) some commentators assert
                        B) amended the INA
                                I) to require the removal
                                        (a) of at least some unauthorized aliens,

1) Congress enacted a number of measures
        a) directing DHS
                i) to give priority to the removal
                        A) of “criminal aliens.”112

DHS has emphasized that
        a) its diminished focus
                i) on the removal of DACA-eligible individuals

          corresponds to an increased focus
                i) on criminal aliens,113 and

1) a reviewing court could potentially find that
        a) enforcement
                i) of later-enacted mandates
                        A) (as to criminal aliens)

          may justify more limited enforcement
                i) of earlier enacted mandates
                        A) (as to unauthorized aliens generally).

107 See, e.g., Michael Hoefer, Nancy Rytina, and Bryan Baker, DHS Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011, Population Estimates (Mar. 2012), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf.
108 Civil Immigration Enforcement, supra note 8, at 1 (“ICE ... only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.”); Defendants’ Motion to Dismiss and Memorandum in Support, supra note 36, at 19 (“Deferring action for certain childhood arrivals means nothing more than that the Department will shift its limited resources to focus on its highest removal priorities, which include, per Congress’s directive, a focus on criminal aliens and other aliens who threaten public safety.”).
109 The Executive could also potentially still take enforcement action in the latter cases by, for example, commencing removal proceedings against aliens whom it had previously decided not to bring proceedings against. There is no
statute of limitations for the removal of unlawfully present aliens, so those who currently are removable on the grounds
that they are present without authorization would generally still be removable on these grounds in the future. However, by remaining in the country for a longer period of time, aliens who are present without authorization could potentially acquire new bases for adjusting status (e.g., marrying a U.S. citizen or lawful permanent resident), as the Court noted in Reno. 525 U.S. at 490. In addition, at least at some times previously, the immigration agencies had policies of not
taking action against persons whom they had previously determined warranted favorable exercises of prosecutorial discretion unless the alien’s circumstances had changed. See 2002 INS Guidance, supra note 2, at 11-12 (noting that favorable exercises of discretion are to be “clearly documented” in the alien’s file, and that an INS office should generally abide by a favorable decision taken by another office on a matter, absent new or changed circumstances).
110 Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, supra note 10, at 2 (“No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.”).
111 Individuals who do not meet these criteria could still request or be granted deferred action outside of DACA.


Another potential constraint
        a) upon the executive branch’s exercise
                i) of prosecutorial discretion

1) was noted
        a) by the Supreme Court
        b) in Heckler v. Cheney.


the Court rejected a challenge
        a) to the Food and Drug Administration’s
                i) (FDA’s)
                ii) decision
                        A) not to exercise its enforcement authority
                                I) over the use of certain drugs

1) on the grounds that
        a) “an agency’s decision
                i) not to take enforcement action

          should be presumed
                i) immune from judicial review
                        A) under § 701(a)(2)”
                                I) of the Administrative Procedure Act (APA).114

Section 701(a)(2)

← End

Constitutional limit on the prosecutorial discretion

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