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

(For Part I, see here.)

Another argument made by Judge Kavanaugh is that eliminating prosecutorial discretion would involve the legislature exercising executive power:

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).

Once again, I think this argument does not follow. It is probably the case that
Congress cannot pass a law saying that the President must prosecute a particular person for violation of a crime. But that does not mean that Congress cannot pass a law saying that the President must bring an action against all persons where there is a probable cause to believe that they committed a particular crime. In this case, the President makes the decision as to whether there is probable cause, but there is no prosecutorial discretion. And if there are sufficient funds to finance all the actions, then the President must bring them.

It is easy to forget what the dispensing power was all about. One of the core cases involved James II’s decision not to enforce the law requiring a religious oath to be taken in order to hold certain offices, such as military command. Sure such a law would be unconstitutional in the U.S., but because of religious liberty, not because it takes power away from the executive. That the dispensing power in this case could have been seen as protecting individual rights did not make it legal.

The main argument that I have seen for prosecutorial discretion is that executives traditionally have been given this power. But that hardly makes it constitutionally required that they possess it. It makes sense to give the executive prosecutorial discretion because it is hard for the legislature to pass a sensible law that would regulate these matters. But that does not mean the legislature cannot take the discretion away in particular cases or constrain it various ways.

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

    This is indicative of a such a pro-statist mindset, I can hardly digest it.

    Government by nature has discretion in what it prosecutes. It is almost a “natural right” of government to NOT screw people, a right they actually use a lot and yet, not nearly enough for many victimless crimes.

    The goal of laws is NOT to put people in jail, it’s to change behavior or prevent behavior. The state by nature must bring a case and has the option of not doing so and the person in charge gets to make that call, all the way up the food chain.

    It’s like you’re claiming the President hasn’t the power to breathe, because Congress hasn’t given it to him.

  2. John Ashman says

    “The executive Power shall be vested in a President of the United States of America. ”

    I don’t understand how this could be any more clear.

    • gabe says

      John / Mike:
      “The executive Power shall be vested in a President of the United States of America. ”
      And this Executive shall see “that the laws are faithfully executed.”
      I like Mike’s approach as to discretion being limited to finding(s) of probable cause – which occurs rather frequently, doesn’t it.

      With respect to discretion being necessary because of lack of funding – perhaps, we should eliminate a vast array of “hidden” law which entraps many citizens – to include the six year old lemonade entrepreneurs or the Benghazi “video man.”
      Discretion also poses the problem of an “unequal application” of the law(s). How do you surmount this?

      • John Ashman says

        90% of Federal laws at this point are unconstitutional and so the President is in a no-win situation, as was HAL 9000. He can’t uphold the Constitution while enforcing unconstitutional laws. The Constitution itself is the overarching law of the land. The validity of the execution of laws rests in the law being actually Constitutional, which is almost certainly not the case at this point. Certainly not with most drug laws.

      • John Ashman says

        Also, the courts are tasked with handling inequalities in the law.

        Though they fail miserably at this.

        The problem is two many laws, and mostly unconstitutional ones, so something has to give. And until it does, prosecutorial discretion is simply the unavoidable result.

        Remember that the laws of the US are not there to jail people, but to organize several states into a functioning organization. The Federal government has no business prosecuting probably 95+% of the people it prosecutes, as they are not offenses against the US government itself or over something it has legal domain.

  3. Jr says


    It is far from clear that eliminating prosecutorial discretion would be bad from a libertarian point of view. Without prosecutorial discretion Congress would actually have to repeal unpopular or unworkable laws, thus weaking the power of the executive branch.

    • John Ashman says

      This is a good point, as saving America may first require bankrupting it, but I do think that it is a pretty big leap to tie the the faithful execution of the law in with prosecuting every single person possible. If the true interpretation must be “if someone is arrested or believed to have violated a federal law, they must be prosecuted” and the President is in charge of making this happen, I think we would be immediately launched into a true civil war.

      I believe that the Executive Branch’s ability to execute the law as he believes best is the only thing that tempers Congressional ignorance of the Constitution.

      As long as Congress believes it has no limits, I am content with the Supreme Court and the President doing everything within or without their power to stop them.


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