{"id":2358,"date":"2015-10-15T14:18:04","date_gmt":"2015-10-15T18:18:04","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jol\/?p=2358"},"modified":"2018-08-28T22:33:58","modified_gmt":"2018-08-29T02:33:58","slug":"prosecutorial-discretion-holder-memorandum","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2015\/10\/15\/prosecutorial-discretion-holder-memorandum\/","title":{"rendered":"Prosecutorial Discretion and the Expansion of Executive Power: An Analysis of the Holder Memorandum"},"content":{"rendered":"

Prosecutorial Discretion and the Expansion of Executive Power: <\/strong><\/p>\n

An Analysis of the Holder Memorandum<\/strong><\/p>\n

by Erin Cady, JD ’16<\/p>\n

\"Scales<\/a>\u00a0<\/strong>\u00a0<\/strong><\/p>\n

I.\u00a0Introduction<\/strong><\/p>\n

President Obama has used executive power to advance policymaking on issues from immigration to national security throughout his Administration, particularly since the Republican Party won a majority of seats in the House of Representatives in 2010. Through the use of executive orders and, more commonly, directives to the numerous federal agencies under his control, President Obama can continue to advance the policies of the government in accordance with his vision while bypassing a hostile Congress.[1]<\/a><\/p>\n

One such use of executive power was an August 2013 Memorandum from Attorney General Eric Holder instructing Assistant United States Attorneys (\u201cAUSAs\u201d) across the country to decline to impose criminal charges that would trigger mandatory minimum sentences for non-violent, low-level drug offenders (hereinafter referred to as the \u201cHolder Memorandum\u201d).[2]<\/a>\u00a0This article argues that this directive was an abuse of prosecutorial discretion because the categorical nonenforcement of a duly enacted law violates the Take Care Clause of the Constitution, effectively constituting an impermissible second veto by the President. Further, categorical nonenforcement of laws creates systemic problems within the government, leading to policy bargaining with the president rather than among\u00a0members of Congress, and an eventual erosion of legislative power in favor of the Executive.<\/p>\n

Although the Holder Memorandum was sharply criticized by the National Association of Assistant United States Attorneys,[3]<\/a> it has largely escaped the forceful political and legal debate that has surrounded President Obama\u2019s use of executive power. Certainly, the President\u2019s nonenforcement of immigration laws for \u201cDREAMers\u201d brought to the United States illegally as children, and the Administration\u2019s intervention in Libya, for instance, are more exciting, controversial topics. In fact, the curtailment of mandatory minimum sentences for low-level drug offenders is hardly controversial at all\u2014there is both public and bipartisan support in Congress to change the criminal code.[4]<\/a><\/p>\n

The fact that there is consensus for change in this policy area, however, makes the use of executive power in this instance even more troubling\u2014it suggests that executive power is being used, not because America cannot wait for congressional gridlock to be resolved, but because it is easier to make the change through executive power than through the legislative process set out in the Constitution. Although Speaker of the House John Boehner\u2019s lawsuit against the President appears to be more bluster than a realistic attempt to require the President to enforce the laws, it indicates a major dilemma with the overuse and abuse of executive power: Congress can do very little, save drastic actions, to stop the Executive from gaining power at its expense.<\/p>\n

II. The Holder Memorandum<\/strong><\/p>\n

In early 2013, the Department of Justice under Attorney General Eric Holder conducted a \u201ccomprehensive review\u201d of the criminal justice system and identified five \u201cSmart on Crime\u201d goals to reform the system:<\/p>\n