Prosecutorial Discretion Power at its Zenith: The Power to Protect Liberty

Prosecutorial Discretion Power at its Zenith: The Power to Protect Liberty asserts that "there are clear dangers in allowing a president to wield excessive prosecutorial discretion power."

Markowitz adds that limits must be set in order to "preserve the separation of powers enshrined in our Constitution.... Taken to its extremes," he writes, " the power not to enforce could act as a constitutionally suspect second veto for a broad swath of legislation." Although the article focuses on the actions taken by President Obama to spare certain undocumented immigrants from deportation, the author looks at other examples of perceived executive overreach, including President George W. Bush's decision to refrain from prosecuting operators of coal-fired power plants in violation of the Clean Air Act and to relax enforcement regimes at the Department of Labor and Office of Civil Rights, presumably in pursuit of a larger political agenda.  Markowitz refers to these instances of prosecutorial discretion as "normative" or "categorical," as opposed to "administrative" in nature, i.e. where the decision is based solely on resource constraints. The author then develops what he considers to be a constitutionally legitimate principle to guide the executive branch in exercising categorical discretion. He asserts that an action to prevent "the deprivation of liberty" has ample constitutional sanction and legal precedent and that by this standard, the Obama executive actions in the case of the DACA and DAPA programs can be justified -- and presumably affirmed by the Supreme Court. (Abstract by Prof. Nick Montalto)

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