Monday, March 28, 2016

Prosecutorial Discretion and Justiciability

by Michael Dorf

The main point of my post last Thursday--on the oral argument in Zubik v Burwell--concerned the effect of the Religious Freedom Restoration Act (RFRA). I suggested that where a provision of another federal statute fails RFRA's least-restrictive-means test, the right remedy for a court to choose or for the executive to adopt preemptively should not necessarily be to invalidate that other statute as applied to the RFRA claimant. Instead, given the principle that statutes should be read in harmony with one another, I proposed that RFRA could be read to delegate to the executive in the first instance, and then to the judiciary where the executive does not accommodate, the authority to fashion an exception that would otherwise be unauthorized.

The particular context was a suggestion during the oral argument by Chief Justice Roberts and Justice Alito. They said that the contraception mandate the administration has imposed under the Affordable Care Act (ACA) fails the RFRA test as applied to religious organizations that object to what they perceive as their participation in providing their employees with contraception insurance coverage if they comply with the existing method of notifying the government because there is a less restrictive alternative: Just let the employees buy contraception-only insurance on exchanges, these justices proposed. I noted the government's objections to this idea in my post, to which Marty Lederman adds another: it might not even work, because the current objectors might still object that the acts required to trigger coverage via the exchanges would themselves be sinful participation in violation of their RFRA rights. But my core point put this and other objections aside: If purchases of a contraception-only plan on an exchange really were an accommodation that made everyone happy, then maybe RFRA tacitly authorizes it, I suggested.

En route to that point, I included a side discussion of a question that Justice Alito posed for Solicitor General Verrilli. Justice Alito asked why--if contraception-only plans are forbidden on the exchanges by the ACA--the executive couldn't simply announce its intention to invoke prosecutorial discretion not to prosecute anyone offering such a plan and to reimburse such insurers with a premium. In my last post, I took this question seriously and wondered whether it foreshadowed an executive-friendly vote by Justice Alito in the pending litigation over the validity of the Obama administration's immigration program in United States v. Texas. To repeat my summary of the stakes in that case:
the parties appear to agree that the president has prosecutorial discretion to withhold deportation and other enforcement actions against undocumented immigrants, while they disagree about how to characterize other aspects of the programs of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). Texas and its amici argue that DAPA and expanded DACA provide status and benefits to undocumented immigrants that the law does not authorize. The government argues that DAPA and expanded DACA do no such thing, although other laws do kick in when an undocumented immigrant is eligible for DAPA or expanded DACA. What's notable about Justice Alito's question is that he seems to assume that the president has the authority--in the exercise of prosecutorial discretion under the ACA--to expand the scope of insurance available on exchanges and to spend money to subsidize that expanded scope. An analogous view in the immigration context would be that even if Texas is right in its characterization of DAPA and expanded DACA as granting undocumented immigrants lawful status unauthorized by Congress, that would be legal as an exercise of prosecutorial discretion.
I then added that perhaps I had misread Justice Alito. A couple of commenters persuaded me that I had. Rather than an admission by Justice Alito that his view against the government in Zubik heralds an Alito vote for the government in US v. Texas, they persuaded me that Justice Alito was really asking whether SG Verrilli's position in US v. Texas committed the government to the position that contraception-only coverage could be offered on an exchange via the exercise of prosecutorial discretion--and that therefore the government should lose Zubik because it was estopped from arguing that insurance-only plans on exchanges are illegal.

For the reason noted in the excerpt above, I continue to think that the government's position in the two cases is consistent. The government says in US v. Texas that the prosecutorial discretion exercised in DAPA and expanded DACA do not confer any benefits on undocumented immigrants; those benefits are conferred by other statutes. Texas and its amici contest this characterization. As Prof. Kalhan elaborated on this blog last June, there are good reasons to think that the Obama administration has the better argument on this point, but I don't want to take a position on the characterization question right now. Instead, I simply want to note again that insofar as Justice Alito was suggesting that the government's position in US v. Texas implies that the government can, in the exercise of prosecutorial discretion, confer benefits like subsidies on an exchange, Justice Alito was wrong. The government does not claim any such power in US v. Texas.

Meanwhile, there is another important distinction between, on one hand DAPA/expanded DACA and, on the other hand, Justice Alito's hypothetical executive exercise of prosecutorial discretion with respect to the exchanges, even setting aside the subsidy. In the immigration context, there is a plausible basis for treating withholding of deportation as within the traditional heartland of prosecutorial discretion--namely, resource constraints.

I have previously argued in the context of the Obama administration's policies with respect to both marijuana and immigration that any sound invocation of prosecutorial discretion must rest on something beyond the executive's simple dislike for the law in question. In extraordinary circumstances, that "something" might be the view that the law is unconstitutional, although enforce-but-don't-defend might be a better choice in that context. But putting aside hard questions about the scope of the president's power and/or duty to make independent judgments about constitutionality, by far the most frequent ground for non-enforcement or under-enforcement of a law will be resource constraints. Given the breadth of legal duties, faithful execution of the law necessarily includes decisions to prioritize enforcement of some rather than other laws.

In the post just linked, I also noted that a decision that is based on limited resources will inevitably also contain an element of policy judgment. How could it not? Even if one looks to legislative judgments about punishments as a source of guidance about what offenses are most serious, even the determination to focus on the most serious, rather than, say, the most frequent, types of offenses reflects a policy judgment. Accordingly, the fact that the executive mixes policy grounds with resource constraints does not render an otherwise-permissible policy of non or under-enforcement invalid. However, as I put the point in the earlier post, in my view the constitutional limit under the Take Care Clause is this: A president may not use considerations of resource allocation merely as a pretext for undermining a law that he would prefer to simply not enforce regardless of resources.

But I also think that for separation-of-powers reasons, courts probably cannot and should not enforce the foregoing italicized principle. If there is a plausible resource-allocation rationale for non- or under-enforcement of some statute, then courts are not well positioned to examine whether that rationale is the "real" reason for the non-enforcement. For that reason (again, putting aside the question of how to characterize the benefits) I think the government should win in United States v. Texas. There are millions of undocumented immigrants in the U.S. The federal executive lacks the resources to deport all of them, even if it wanted to. Thus, although it's probably correct to say that the Obama administration wouldn't want to deport any of the people who qualify for DAPA/expanded DACA, that ostensible motive shouldn't be relevant to judicial evaluation of the policy.

A somewhat more strongly pro-executive view--and one that can be found in some of the Court's more conservative standing decisions--would say that all challenges to the exercise of prosecutorial discretion are non-justiciable, even if there is no plausible resource-constraint ground for the non- or under-enforcement policy. That view is actually probably closer to the law than my own view. That is, my view is somewhat more hostile to the very broad exercise of prosecutorial discretion than is the existing law--although obviously we will learn more about what the law is in US v. Texas.

So now let's double back to the Zubik oral argument. I want to imagine a colloquy that might have occurred.

JUSTICE ALITO: Couldn't the Executive deal with the problem of what's available on the Exchanges at the present time in this way: Policies are available that provide comprehensive coverage. Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive­ only policies . . . .? [Actual quote]. 
SG VERRILLI: I don't believe we have that authority. 
JUSTICE ALITO: Why not? If you exercised your prosecutorial discretion, then any challenge to a non-enforcement decision would be non-justiciable. 
SG VERRILLI: That's true, your honor, but that only means that the president can sometimes get away with violating his duty to take care that the laws are faithfully executed. He still has a duty to faithfully execute the law--and where, as in your hypothetical example, there is no plausible basis for the non-enforcement decision based on resource constraints or the like, the president can't do it. Whether a less restrictive alternative is available should depend on whether it is legal, not just on whether the government could get away with pursuing the alternative.
That last paragraph that I have placed in the mouth of the Solicitor General is my view.


Justin said...

As I said before, I think missing from this equation is the fact that RFRA is an interpretation statute. Let me try and break this down again.

Under the "RFRA interpretation statute," T2 Congress intends that religious objectors be exempt from any requirements that do substantially burden their religion, except to the extent that the exemption infringes upon a government's compelling interest, and only when that interest cannot be resolved in a more narrowly tailored fashion. (I'm using the Smith terminology, knowing that these words were not, pre-Hobby Lobby, given a literal reading).

Now, statutory interpretation can *help* us, sometimes, know what is a compelling interest. An interest might be less compelling, for instance, if the legislation showed agnosticism about it. On the other hand, if the interest was more central to the legislation, it is more compelling. Because RFRA is a T2 interpretation statute, what is compelling is what the T2 Congress thought was compelling.

And statutory interpretation can also *help us* with the narrowly-tailored part. What is or is not narrowly tailored must again be viewed from the T2 Congress. And if T2 Congress expressly foreclosed one solution, then that solution cannot be more narrowly tailored, even if the President could, in its discretion, ignore the demand due to constitutional structure.

Or, to put it another way, we know that putting contraception coverage on the exchanges cannot be more-narrowly tailored because the ACA forbade it, and the ACA's implied RFRA section cannot *require* something that the ACA *forbids*.

Link provided to my original analysis:

Justin said...

By saying that RFRA is a T2 interpretation, statute, btw, I mean that the T1 Congress's RFRA statute's only effect is that it helps interpret the T2 Congress's statute, i.e., the ACA.

Michael C. Dorf said...

I read Justin's comments as addressing my post from last week, not the new points I'm making here. Even then, I think his views iAd probably wrong. The idea of RFRA could well be to spare the T2 Congress from having to think about religious exceptions. RFRA will often apply to provide exceptions from seemingly categorical prohibitions.

Justin said...
This comment has been removed by the author.
Justin said...

My comments were intended to address your point here. Specifically, from your fake colloquy:

SG VERRILLI: That's true, your honor, but that only means that the president can sometimes get away with violating his duty to take care that the laws are faithfully executed. He still has a duty to faithfully execute the law--and where, as in your hypothetical example, there is no plausible basis for the non-enforcement decision based on resource constraints or the like, the president can't do it. Whether a less restrictive alternative is available should depend on whether *it is legal*, not just on whether the government could get away with pursuing the alternative.

I would edit that to say:

SG VERRILLI: That's true, your honor, but that only means that the president can sometimes get away with violating his duty to take care that the laws are faithfully executed. He still has a duty to faithfully execute the law--and where, as in your hypothetical example, there is no plausible basis for the non-enforcement decision based on resource constraints or the like, the president can't do it. Whether a less restrictive alternative is available should depend on whether it was *intended by Congress*, not just on whether the government could get away with pursuing the alternative.

I'm not persuaded by "it is legal" by itself, because it seems to be arguing some non-inherent standard. Why does it matter if it is legal? Government uses enforcement discretion all the time to accomplish competing goals, so why not here? What does the legality of an accommodation actually have to do with the statutory interpretation of either RFRA or the ACA? I could come up with plausible arguments why it makes sense as a rule, but it would be a policy argument, not a statutory interpretation argument.*

Now when I say "intended by Congress," I understand Congress did not *actually* intend a *particular* accommodation. But, under the administrative-state theories that I accept (and I don't think are terribly controversial), administrative lawmaking is legal only to the extent consistent with Congressional intent, and only under the theory that Congress is fulfilling the act's intent, rather than independently engaging in legislation.

Another way of saying "compelling government interest," in that sense, is that Congress intended that this result be accomplished regardless of RFRA. And "narrowly tailored" is another way of limiting the scope of possible choices that the Administration can use in accomplishing the result. (Think of it as a limited exception to the normal "Step 2" analysis of the general Chevron doctrine.) But the most narrowly-tailored response must still be consistent with the ACA itself, or it would be an unlawful *Step 1* choice.

It's too easy to fall into constitutional legal traps. At the end, RFRA is not an overruling of Smith - that would be beyond Congress's power. Thus, Congress's intent in passing the ACA, against the backdrop of RFRA. is what we are analyzing, even if that intent is not always clear.

Sorry that you disagree.

*I guess "that it is legal" could be imposed as a general principle of statutory interpretation to the extent you are supposed to interpret the US Code as a concrete whole. That interpretation would require "that it is legal under federal statutory law" (which, due to the Supremacy Clause, is probably not a distinction with much difference), but it would work. But it would also not be fundamentally different from my argument, which you expressly disagree with. So I'm stumped.

Michael C. Dorf said...

Justin: You are still arguing about the point I made in the last post, not this one. In my hypothetical colloquy, SG Verrilli and Justice Alito are both assuming that neither the ACA nor the ACA as read against the backdrop of RFRA authorizes contraception-only exchanges. That is, they are REJECTING my view that RFRA can be said to authorize what the ACA, standing alone, would forbid. But Justice Alito says "so what?" You can get there by prosecutorial discretion. And SG Verrilli says no, there are limits to what can be accomplished via prosecutorial discretion. My point here really has nothing to do with RFRA. It's about the difference between saying that no court can order the president to satisfy the Take Care Clause and saying that there is no duty under the Take Care Clause. This issue arises here through RFRA, but my current point has nothing to do with RFRA.

Now, as to your continuing objection, I still think you're wrong. I'll try one more time with a variation on a famous statutory interpretation example. Suppose that Congress passed a law saying that the only vehicles permitted in some national park are Parks Service vehicles and emergency vehicles. Now along comes a Native tribe that has traditionally held a ritual that involves a horse-drawn carriage trip to a part of the park they consider sacred. Let us stipulate that in the absence of RFRA, the tribe would be barred. Even assuming Congress, when it enacted the "no other vehicles in the national park" law, had in mind no exceptions, RFRA quite naturally would give the tribe a prima facie exception. I think that's also how RFRA would work with the ACA exchanges (were it not for the other difficulties with the plaintiffs' argument). In both cases, the whole point of RFRA is that if Congress doesn't specifically disclaim RFRA in the Time 2 statute, the courts assume that Congress legislated against the backdrop that it wanted religious exceptions available where appropriate.

So I don't disagree and have never disagreed with your point that RFRA couldn't and didn't overrule Smith, nor do I disagree that courts are ultimately after the intent (or, in textualist terms, the meaning) of the later-enacted statute. I just think that RFRA creates a default that, absent express language, religious exceptions are available even from statutes that do not on their face contemplate exceptions.

Justin said...

Okay, I understand your point in this article now. I think the Take Clause issue is irrelevant, unenforceable, a non-issue in Texas v. United States, see, and I didn't realize you were focusing on it. Sorry.

On this point, I am surprised you keep wrongly restating my point, which is not that "absent express language, religious exceptions are [not] available even from statutes that do not on their face contemplate exceptions," but that a religious exception *that violates the face of the statute* is not available from a statute, regardless of whether [other] exceptions are contemplated or not. Or, in other words, it is my view "that RFRA can[not] be said to authorize what the ACA, standing alone, would forbid." But since that's a view you appear to reject(?), I don't think it's worth any more further discussion.

Michael C. Dorf said...

I was not saying that the Take-Care Clause issues is relevant in Texas v. United States. I was addressing whether the fact that violations of the Take-Care Clause are non-justiciable disables the govt from relying on its Take Care duty in the ACA case.

Now, as to RFRA: Suppose parent repeatedly says to child: Never leave home without your keys. Now suppose one day child is packing for a three-day trip but can only take a carry-on bag. Child can't get all of the stuff--including teddy bears and a sleeping bag--into the carry-on. Parent says to child: Only bring two changes of clothes, a hairbrush, toothpaste, and a toothbrush. Should child bring her keys? Of course. Against the prior background, the later instruction--which on its face appears to rule out keys--does not override the earlier instruction. If parent had said "but for this trip, don't bring your keys, because we'll be here to let you in when you return," then child shouldn't bring keys. That's the way RFRA interacts with later-enacted statutes. And it's not unique. Compare the point that Justices Souter and Ginsburg make about the Non-Detention Act in the former's separate opinion in Hamdi. The earlier statute shifts the default by requiring, in effect, a plain statement in the latter statute, not because an earlier Congress binds a later one but because the later one legislates against the background of the earlier one. You seem to be saying something like this, and yet you also seem to think you're disagreeing with me. So I'm confused about what your position is and perhaps about what you think my position is.

Justin said...

I'm only responding because you responded, I'm perfectly happy to drop this, but I think your hypothetical doesn't help you. The reason the hypothetical doesn't work is because nobody would read "Only bring two changes of clothes, a hairbrush, toothpaste, and a toothbrush," to literally forbid bringing keys.

In contrast, it is pretty clear that a contraception-only plan is *not* included in the definition of Qualified Health Plan, and, it's pretty clear that "An Exchange may not make available any health plan that is not a qualified health plan," is meant to exclude a contraception-only plan in the way that your small laundry list isn't intended to exclude keys. And I think that's true even if you mention the magic word keys.

I don't know if we're actually that far off, except I think we're each maybe being a little fast and loose with language in a way that is signaling to the other that we're not disagreeing?

Because I think the fact that the ACA specifically says "An Exchange may not make available any health plan that is not a qualified health plan," makes it pretty plain that Congress did not attend, as a more narrowly-tailored way of getting contraceptive coverage to women of employers who need an accommodation, for the government to allow contraception-only health plans to be offered on the Exchange, even if they needed no subsidy, and even if their purchase was limited only to individuals of employers needing the accommodation.

And the sense that you disagree appears to be more of a "magic words" disagreement--except I'm pretty sure you disclaimed a "magic words" requirement by RFRA as binding. From yourview, Congress's insistence that only qualified plans be on the Exchange (to be specific, the language above) may be construed as "unless someone needs an accommodation," but not from mine. In large part, I don't get there because that's not the natural reading of the statute, even if you know about RFRA's existence. But I also don't get there because doing so would give the Government far too much power to ignore all limitations on its authority in the guise of making an accommodation; one could fit quite a few elephants in such a mousehole. But if that's the extent of our disagreement, so be it; but in that case, I think fake-Verelli's response seems inadequate, as the contraception exchanges then AREN'T actually illegal. Or am I still missing something?

In any event, I have to run and get the kiddos, so I can't elaborate any further.

Shag from Brookline said...

Thanks, kiddies, just in time to save us from more illaboration.