The President Does Not Have a Constitutional Power of Prosecutorial Discretion: Part I

Recently, D.C. Circuit Judge Brett Kavanaugh has argued that the President enjoys a constitutional power of prosecutorial discretion. Mike Ramsey may also believe that the President has this power.

I have not fully studied this issue, but I have reviewed much of the literature and I am puzzled as to why people believe that the President enjoys any constitutional power of prosecutorial discretion. Where does it come from? What are the original materials that support it?

The Congress ordinarily has a power to mandate the execution of a law. Judge Kavanaugh writes that “[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.” And certainly this is correct. It would be very surprising if the President could choose not to pay someone their social security benefits. If Congress passes a law that mandates the closing of a prison, that is required. If Congress passes a law that requires the executive to issue a particular regulation, it must do so.

So what is different in cases of prosecutorial discretion? (Before exploring this question, let me add that one can draw a distinction between federal civil laws and federal criminal laws. Are people arguing for prosecutorial discretion as to criminal actions only or also for civil actions? It is not clear what they arguing, but the arguments might differ somewhat. For now, I will largely focus on criminal violations.)

If the President is required to enforce other federal laws, then why is there said to be prosecutorial discretion for criminal laws?

One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion:

The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . 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.

Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power.

This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.

(In Part II tomorrow, I will discuss a second argument made by Judge Kavanaugh.)

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. John Ashman says

    It’s an interesting assertion, both ways, but the government at all levels claims prosecutorial discretion, so how can it be that the very highest link in the chain is the only one who doesn’t have it?

    The alternative is that everyone must be prosecuted all the time and that would leave everyone in jail. Who would jail the jailers?

    This is not a unilateral power. And the President, by nature of his office, should have incredibly broad power to implement or not implement the laws under which there is any discretion at all. There is no law that states that there shall be no discretion, nor that shall fine, fire or jail any public servant who refuses to charge someone for a crime.

    There is a reason why there is an appointment process, such that not only will prosecutors have the desired temperament, but will also obey orders passed down from the executive branch.

  2. John Ashman says

    There’s another element to consider. Many, if not most, laws that tend to bring in prosecutorial discretion are clearly unconstitutional, even though presidents have been too timid to state as much. Or perhaps they intuitively understand that there is something wrong with how the law is being applied and try to fool themselves into believing that it is still within the realm of constitutionality.

    In any case, are you arguing that the executive branch should not have the power to tell Federal prosecutors to stand down when an unjust and unconstitutional law is being terribly applied? Or that preference be given to crimes that have verifiable victims rather than forcing limited resources to attempt to jail marijuana smokers?

    Further, if there is not a unified standard and in once jurisdiction, the prosecutors aggressively go after marijuana smokers, while in other jurisdictions, they do not, how can this possibly be equal treatment under the law?

  3. Mike Rappaport says

    I am only arguing against a constitutional power of prosecutorial discretion, not against prosecutorial discretion given by Congress. If Congress gives prosecutorial discretion, that is fine. But my argument is that Congress can take it away, and the Constitution allows that.

    • John Ashman says

      Where in the Constitution does it specifically give that power?

      I don’t see how this doesn’t fundamentally alter the balance of power, as Congress has been increasingly placing limits on the executive and judicial through all sorts of nefarious means, while demanding increased power for itself.

      I don’t see how Congress gets to do this.

  4. gabe says

    And here i was thinking that our problems have to do with Congress delegating far too much power to Executive Dep’t agencies – who willy -nilly do as they please.
    Well, perhaps, you are right – the IRS, FEC, EPA, ad infinitum should be able to prosecute whomever the heck they want, whenever they want.
    After all, we can’t let little six year olds open a lemonade stand, now can we!!

  5. says

    Judge Kavanaugh’s argument fails for several reasons:

    1.) There is no support for the concept that granting Constitutional authority that produces a particular outcome implies other authority that may result in the same or similar outcome. Sometimes the technicalities matter.

    2.) The notion that the pardon power has an ill-defined “penumbra” that includes not only on discretion, but political machination, ideological exigencies and even whimsy, invites all sorts of mischief that insinuates uncertainty into the law and invites corruption.

    3.) Equating pardons with refusal to prosecute is fundamentally invalid: a person who is convicted and then pardoned does not have the same status as someone who is never prosecuted. In order for the president to issue pardons, he must in fact issue pardons. A failure to prosecute is not an ersatz pardon; it is rather half-assed execution of the laws that the president has sworn to uphold.

  6. David Upham says

    The argument comes from necessity: as long as federal criminal liability greatly exceeds prosecutorial resources, the executive must prioritize. I think the problem of insufficient funds will soon require executive prioritization of expenditures. See here:


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