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Judge Brett Kavanaugh on Executive Power and Prosecutorial Discretion
Michael Ramsey

From the D.C. Circuit in In re Aiken County (decided 8/13/13): "This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes. …"

In a potentially important separation of powers case, the D.C. Circuit (Judge Kavanaugh writing) ordered the Nuclear Regulatory Commission to proceed with the licensing process for the Yucca Mountain facility, as required by statute.  Some excerpts (Kavanaugh, joined by Randolph; Garland dissenting):

Our analysis begins with settled, bedrock principles of constitutional law. Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.

Those basic constitutional principles apply to the President and subordinate executive agencies. And they apply at least as much to independent agencies such as the Nuclear Regulatory Commission. … In this case, however, the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process.

Several justifications have been suggested in support of the Commission’s actions in this case. None is persuasive. …

 … [T]he record suggests that the Commission, as a policy matter, simply may not want to pursue Yucca Mountain as a possible site for storage of nuclear waste. But Congress sets the policy, not the Commission. And policy disagreement with Congress’s decision about nuclear waste storage is not a lawful ground for the Commission to decline to continue the congressionally mandated licensing process. To reiterate, the President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.

Notably, however, Judge Kavanaugh added a long section (speaking only for himself) that outlined an expansive view of prosecutorial discretion based on original meaning.  Key passages (citations omitted):

The Presidential power of prosecutorial discretion is rooted in Article II, including the Executive Power Clause, the Take Care Clause, the Oath of Office Clause, and the Pardon Clause. The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law or because of policy objections to the law, among other reasons.

In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial.  So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.

The Executive’s broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior – more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law.  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).

To be sure, a President’s decision to exercise prosecutorial discretion and to decline to seek charges against violators (or to pardon violators) of certain laws can be very controversial. For example, if a President disagreed on constitutional or policy grounds with certain federal marijuana or gun possession laws and said that the Executive Branch would not initiate criminal charges against violators of those laws, controversy might well ensue, including public criticism that the President was “ignoring” or “failing to enforce” the law (and if a court had previously upheld the law in question as constitutional, additional claims that the President was also “ignoring” the courts). But the President has clear constitutional authority to exercise prosecutorial discretion to decline to prosecute violators of such laws, just as the President indisputably has clear constitutional authority to pardon violators of such laws. Presidential abuses of the power to pardon or to decline to prosecute comes in the form of public disapproval, congressional “retaliation” on other matters, or ultimately impeachment in cases of extreme abuse.

Judge Kavanaugh went on to say that prosecutorial discretion did not help the NRC in the particular case because "[p]rosecutorial discretion does not include the power to disregard other statutory obligations that apply to the Executive Branch, such as statutory requirements to issue rules, or to pay benefits, or to implement or administer statutory projects or programs."  But his view of prosecutorial discretion might well justify other recent executive actions where the President has been accused of not following the law. (Compare here by George Will and here by Jennifer Rubin).

I am not sure, however, how his broad view of prosecutorial discretion is reconciled with the seventeenth and eighteenth century rejection of the dispensing power (see here).  Judge Kavanaugh seems very close to giving the President in effect a dispensing power.  Much of the original controversy over the dispensing power arose in connection with the monarch refusing to enforce parliament's restrictions on individuals -- exactly the power Judge Kavanaugh says the President has.   (For a narrower view of prosecutorial discretion power, see here by John Yoo and Robert Delahunty).

(Via How Appealing).

Further note:  The Wall Street Journal's editorial on the case (here) reads it as casting doubt on the President's other actions, including delaying the employer mandate under the ACA.  But it largely ignores the prosecutorial discretion issue, saying only (contra Judge Kavanaugh, I think):  "The executive has broad enforcement and interpretative discretion but not the wholesale authority to suspend core parts of laws ..."