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.