Friday, 20 December 2013

Enforcement Discretion: Thinking about the Executive, the Rule of Law and the Separation of Powers

The topic of enforcement discretion is the subject of an interesting series of posts by Zachary Price over at the Volokh Conspiracy. The impetus for Price's series and his underlying article ("Enforcement Discretion and Executive Duty") comes from several recent American episodes, such as President Obama's decision not to enforce certain provisions of the Affordable Care Act (see e.g. here), the policy not to pursue certain breaches of federal drug laws and the policy not to seek minimum sentences for some drug offences.

At first blush, this looks much like the dispensing power that common law jurisdictions dispensed with many centuries ago. Price argues, however, that there are constitutional provisions that give the American executive discretion to refuse to enforce laws on a case-by-case basis though not as a matter of general policy. My interest is less in the specifics of U.S. constitutional law than in the generalities of enforcement discretion.

Enforcement discretion is an extremely large topic which raises concerns in all jurisdictions. It can perhaps be perceived as a spectrum running from the enactment of a provision to the final decision of a competent tribunal.

The spectrum runs from the decision of an executive official whether to enforce a provision that is being or has been violated, to the decision of the executive branch to adopt a policy of vigorous (or non-vigorous) enforcement, to the decision of a prosecutor whether to prosecute for a breach of a provision which has been enforced, possibly to the decision of an adjudicator to exercise some discretion in sentencing (currently a moderately hot topic in Canada), and maybe even as far as enforcement by the executive of any sanction ordered. At various points along the spectrum, different concerns may arise.

There are also different categories of individual interest which are affected by enforcement discretion. I argue, for example, in a paper about to be published in the Supreme Court Law Review and an edited collection that administrative guidelines are an important means of ensuring that discretion which is liable to be exercised against individual rights makes as few inroads as possible on those rights.

I touched on this theme earlier this year in a post on the UK Constitutional Law Group blog on assisted suicide and administrative guidelines, which provoked a response from Leah Grolman and Greg Weeks. From their conclusion:
We agree with Paul Daly’s statement that guidelines are a form of “law”, albeit with important differences from forms of law grounded in judicial or legislative expression.  Nonetheless, it is more difficult for an Australian lawyer to find resonance with any characterisation of guidelines, particularly relating to a topic like assisted suicide, which gives primacy to a concept as loose as “the popular will”. There are different ways of approaching the question of administrative discretion. American scholars, such as K C Davis, and judges have expressed distrust of important discretionary decisions being left unconfined in the hands of “unelected bureaucrats”. An Australian might just as easily laud such a circumstance on the basis that a sensitive decision has been left in the hands of an apolitical public servant, such as a DPP. There is no culture in Australia of such officers being elected, nor of them abusing their power. The DPP holds a broad discretion with regard to prosecuting those who assist another person to die precisely because the matter is both highly sensitive and extremely difficult to define legislatively with the precision required of a criminal act.
I think most lawyers would agree with Grolman and Weeks. Typically, wide scope is given to prosecutors. And one must admit that the vast majority of prosecutors exercise their functions in a fair and reasoned manner, as one would expect from lawyers subject to extensive ethical obligations. Nonetheless, as I suggested in my previous posts on the subject, where criteria are used to inform the exercise of discretion it is generally better that they be made public, a point which applies with equal force to executive non-enforcement of statutory provisions.

There is thus something of a paradox in the current American debate over non-enforcement. Non-enforcement certainly raises concerns about the separation of powers -- because the executive fails to enforce a provision duly enacted by the legislature -- and the rule of law -- because there is a divergence between the law in the books and the law in action. But when it is done in the open rather than in the dark, enforcement discretion can nourish public debate about the utility of certain statutory provisions. And of course it can provide a basis for legal challenges. It is doing both in the United States at the moment.

Invocations of the rule of law against non-enforcement are legitimate but they should be treated with caution. Decisions to invoke discretion not to enforce some provisions may be based on the sweeping breadth of statutory provisions -- which itself violates the foreseeability requirement of the rule of law -- or their sheer number -- which itself undermines congruence between law in the books and law in action, lead to inconsistencies and make it difficult for individuals to order their affairs in a lawful manner: see here for a neat review of the relevant principles.

That is not to say that enforcement discretion is an unqualified good. It is simply to say that this area is complex enough that clear answers may not be readily available. And the search for answers is aided, not inhibited, by disclosure and openness about non-enforcement decisions.

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