{"id":4783,"date":"2026-06-07T21:40:02","date_gmt":"2026-06-08T01:40:02","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4783"},"modified":"2026-06-07T23:24:30","modified_gmt":"2026-06-08T03:24:30","slug":"presidential-administration-via-criminal-enforcement","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2026\/06\/07\/presidential-administration-via-criminal-enforcement\/","title":{"rendered":"Presidential Administration Via Criminal Enforcement"},"content":{"rendered":"

Cristina Isabel Ceballos[*]<\/a><\/span><\/strong><\/p>\n

Abstract<\/span><\/h4>\n

When the president seeks to influence administrative agencies, he can choose from a \u201ctoolkit\u201d of different techniques for presidential control. The president might intervene into an agency\u2019s funding, for example, by conditioning the release of agency grants. Alternatively, the president might intervene into an agency\u2019s rulemaking, for example, by directing the agency to rescind a prior rule. Or the president might intervene into an agency\u2019s enforcement, for example, by announcing a high-profile enforcement crackdown against certain types of offenses. By utilizing a broad toolkit of techniques, the president can influence agencies in a process known as \u201cpresidential administration,\u201d a term coined by then-Professor Elena Kagan in 2001. Presidential administration has become the dominant scholarly theory used to describe the president\u2019s influence over administrative agencies, and in the decades since Kagan\u2019s article, many scholars have expanded upon Kagan\u2019s theory by identifying new techniques in the toolkit for presidential control.<\/em><\/p>\n

Fewer scholars, however, have examined criminal enforcement as a tool for presidential administration. Administrative agencies typically pursue civil enforcement (which involves civil penalties such as fines or injunctions), but agencies may also pursue criminal enforcement (which involves criminal penalties such as imprisonment). The president has the power to direct both civil and criminal enforcement, and many recent presidents have turned to criminal enforcement. President Biden, for example, oversaw crackdowns against environmental and corporate crime. President Trump used criminal enforcement against immigrants to create the Family Separation Policy. President Obama encouraged criminal prosecution of workplace safety violations. And President Bush used civil and criminal enforcement in his attempt to outlaw physician-assisted suicide in Oregon.<\/em> In these examples, criminal enforcement has functioned as a tool for presidential administration, allowing the president to influence areas like immigration law, environmental law, and workplace safety.<\/em><\/p>\n

I. Introduction<\/span><\/h4>\n

In recent years, the president has intervened in criminal enforcement across a wide range of policy areas. President Trump combined criminal and immigration enforcement to create the Family Separation Policy.1<\/a><\/sup>Ms. L. v. U.S. Immigr. & Customs Enf\u2019t., 415 F. Supp. 3d 980, 984 (S.D. Cal. 2020) (\u201c[P]arents who were prosecuted for unlawful entry . . . were not reunified with their children after serving brief criminal sentences because DHS did not have adequate systems in place to keep track of the children . . . . As a result, migrant parents remained separated from their children for months . . . .\u201d); see also <\/em>Jeff Sessions, Memorandum for Federal Prosecutors Along the Southwest Border<\/em> (Apr. 6, 2018) [hereinafter Family Separation Memorandum], https:\/\/www.justice.gov\/archives\/opa\/press-release\/file\/1049751\/dl [https:\/\/perma.cc\/ZJ2N-SEDA] (directing federal prosecutors to accept criminal referrals from immigration agencies).<\/span> President Biden oversaw a crackdown on environmental and corporate crimes.2<\/a><\/sup>In 2024, the Biden administration announced a \u201cStrategic Civil-Criminal Enforcement Policy\u201d for environmental crimes. See<\/em> David Uhlmann, Strategic Civil-Criminal Enforcement Policy (Apr. 17, 2024), https:\/\/www.epa.gov\/system\/files\/documents\/2024-04\/strategic-civil-criminal-enforcement-policy-april-2024.pdf [https:\/\/perma.cc\/CUQ3-9MBG]. The Biden administration also cracked down on corporate crime. See infra <\/em>note 219.<\/span> President Obama encouraged criminal prosecution of workplace safety violations3<\/a><\/sup>See <\/em>U.S. Dep\u2019t of Labor & U.S. Dep\u2019t of Just., Memorandum of Understanding Between the U.S. Departments of Labor and Justice on Criminal Prosecutions of Worker Safety<\/em> (Dec. 17, 2015) [hereinafter Workplace Safety Memorandum], https:\/\/www.justice.gov\/enrd\/file\/800526\/download [https:\/\/perma.cc\/QYM4-Q55H].<\/span> and announced new guidelines for mandatory minimum sentences.4<\/a><\/sup>See infra <\/em>notes 198\u2013205 and accompanying discussion.<\/span> And President Bush invoked both civil and criminal enforcement in his attempt to outlaw physician-assisted suicide in Oregon.5<\/a><\/sup>See <\/em>Part III.B for a discussion of Gonzales v. Oregon, 546 U.S. 243 (2006).<\/span> Across both Democratic and Republican administrations, the president has used criminal enforcement for policymaking in immigration law, environmental law, workplace safety, securities regulation, and other regulatory areas that include criminal penalties.6<\/a><\/sup>Many regulatory statutes include both civil and criminal penalties. Generally speaking, criminal penalties are more severe than civil penalties and may include imprisonment. Civil penalties are less severe and often involve civil fines, injunctions, or immigration penalties like removal. See <\/em>Part III.A for a longer discussion of civil and criminal penalties.<\/span><\/p>\n

In many of the above examples, the president enlisted the resources of both traditional administrative agencies, such as the Environmental Protection Agency, and the Justice Department, which is the sole agency authorized to bring federal criminal charges.7<\/a><\/sup>The Justice Department holds a \u201cmonopoly\u201d over federal criminal prosecutions. See <\/em>Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors<\/em>, 103 COLUM. L. REV. 749, 758 (2003).<\/span> This approach is common for presidents who use criminal enforcement: many presidential policies will cut across both administrative and criminal law.8<\/a><\/sup>See <\/em>Part III.B, which discusses examples from the Trump, Biden, Obama, and Bush administrations.<\/span> So in order to fully address the president\u2019s use of criminal enforcement, this Article adopts a cross-cutting approach that draws on both administrative and criminal law.<\/p>\n

This Article makes two contributions. First, it recognizes that criminal enforcement is a powerful and largely overlooked tool for presidential administration. Coined by then-Professor Elena Kagan, \u201cpresidential administration\u201d is the leading theory that scholars have used to describe the president\u2019s control over administrative agencies.9<\/a><\/sup>See generally <\/em>Elena Kagan, Presidential Administration<\/em>, 114 HARV. L. REV. 2245 (2001).<\/span> Yet scholars of presidential administration have devoted relatively little attention to criminal enforcement. In fact, Kagan did not include the word \u201ccriminal\u201d in the main text of her seminal article on the theory.10<\/a><\/sup>Kagan\u2019s article mentions the word \u201ccriminal\u201d once, in a footnote naming the \u201cAssistant Attorney General for the Criminal Division.\u201d See<\/em> id. <\/em>at 2385 n.193. This Article refers to Kagan without using her full title (\u201cJustice Kagan\u201d), because the Article discusses work written when Kagan was a professor and not yet a Justice.<\/span> Many subsequent articles about presidential administration have followed Kagan\u2019s approach and have largely overlooked criminal enforcement.11<\/a><\/sup>For example, the following articles use the term \u201ccriminal\u201d fewer than three times. See,<\/em> e.g.<\/em>, Ashraf Ahmed, Lev Menand & Noah A. Rosenblum, The Making of Presidential Administration<\/em>, 137 HARV. L. REV. 2131 (2024); Ashraf Ahmed & Karen M. Tani, Presidential Primacy Amidst Democratic Decline<\/em>, 135 HARV. L. REV. F. 39 (2021); Blake Emerson & Jon D. Michaels, Abandoning Presidential Administration: A Civic Governance Agenda to Promote Democratic Equality and Guard Against Creeping Authoritarianism<\/em>, 68 UCLA L. REV. 104 (2021); Daniel A. Farber, Presidential Administration Under Trump<\/em> (Aug. 8, 2017) (unpublished manuscript), https:\/\/ssrn.com\/abstract=3015591 [https:\/\/perma.cc\/9KD7-RXT5]; Andrea S. Katz & Noah A. Rosenblum, Becoming the Administrator-in-Chief: <\/em>Myers and the Progressive Presidency<\/em>, 123 COLUM. L. REV. 2153 (2023); Kathryn E. Kovacs, From Presidential Administration to Bureaucratic Dictatorship<\/em>, 135 HARV. L. REV. F. 104 (2021); Thomas W. Merrill, Presidential Administration and the Traditions of Administrative Law<\/em>, 115 COLUM. L. REV. 1953 (2015); Noah A. Rosenblum, The Antifascist Roots of Presidential Administration<\/em>, 122 COLUM. L. REV. 1 (2022); Bijal Shah, Statute-Focused Presidential Administration<\/em>, 90 GEO. WASH. L. REV. 1165 (2022); Ian Shapiro & David Froomkin, The New Authoritarianism in Public Choice<\/em>, 71 POL. STUD. 776 (2023); Kathryn A. Watts, Controlling Presidential Control<\/em>, 114 MICH. L. REV. 683 (2016).<\/span> This Article advances the presidential administration literature by identifying criminal enforcement as a powerful tool for the president.12<\/a><\/sup>While some administrative law scholars have studied the president\u2019s civil<\/em> enforcement powers, fewer have studied criminal enforcement. Kate Andrias, for example, has considered the president\u2019s civil enforcement powers, yet she deliberately steered clear of criminal enforcement. See <\/em>Kate Andrias, The President\u2019s Enforcement Power<\/em>, 88 N.Y.U. L. REV. 1031, 1036 (2013) (\u201c[A]lthough the role of the President in criminal prosecutions . . . is relevant to this Article, the focus here is on administrative enforcement.\u201d). Other scholars have considered the president\u2019s criminal enforcement powers, yet this scholarship has usually analyzed the president\u2019s enumerated powers rather than the president\u2019s broader powers of presidential administration. For example, Rachel Barkow has studied the president\u2019s clemency powers, see generally <\/em>Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law<\/em>, 90 N.Y.U. L. REV. 802 (2015), while Peter Shane has discussed the president\u2019s powers over prosecutors, see generally <\/em>Peter M. Shane, Prosecutors at the Periphery<\/em>, 94 CHI.-KENT L. REV. 241 (2019).<\/span><\/p>\n

Second, this Article proposes a mens rea-based constraint on the president. This constraint is based on the president\u2019s epistemic disadvantage: the president simply does not know as much as prosecutors and line-level agency officials. If the president seeks directive control over prosecutors, he may pressure prosecutors into bringing charges even if there is weak evidence of mens rea.13<\/a><\/sup>See infra <\/em>Part V for a discussion of mens rea in criminal prosecutions.<\/span> When this happens, the lower courts can use mens rea to constrain presidentially directed criminal prosecutions. For example, in New Mexico, a magistrate judge dismissed criminal charges in dozens of cases against immigrants in the Trump administration\u2019s new militarized border zones.14<\/a><\/sup>In New Mexico, the Trump administration created a new military zone at the border and directed prosecutors to bring more severe \u201cmilitary trespass\u201d charges against immigrants. A federal magistrate judge used mens rea to dismiss the military trespass charges in dozens of cases, holding that prosecutors had failed to allege sufficient facts about mens rea. See<\/em> United States v. Lopez-Gonzalez, 782 F. Supp. 3d 1062, 1071 (D.N.M. 2025); see also<\/em> discussion infra <\/em>Part III.B and Part V.A. <\/span> The judge first applied a presumption in favor of scienter, which reads in an implied mens rea requirement even in statutes that do not expressly require mens rea, and then he held that prosecutors had failed to allege sufficient facts about mens rea.15<\/a><\/sup>See Lopez-Gonzalez<\/em>, 782 F. Supp. 3d at 1070 (\u201cWe start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding \u2018each of the statutory elements that criminalize otherwise innocent conduct.\u2019 We normally characterize this interpretive maxim as a presumption in favor of \u2018scienter,\u2019 by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to \u2018make a person legally responsible for the consequences of his or her act or omission.\u2019\u201d) (citations omitted).<\/span> This Article urges the lower courts to adopt the New Mexico court\u2019s more protective approach to mens rea. In addition, the Article urges the Supreme Court to signal to prosecutors that they should resist presidential pressure to charge cases with weak evidence of mens rea.16<\/a><\/sup>See infra <\/em>Part V for a discussion of mens rea as a signal to the president.<\/span><\/p>\n

This Article proceeds in five parts. Part II situates criminal enforcement within Kagan\u2019s theory of presidential administration. Kagan\u2019s traditional toolkit described rulemaking, civil enforcement, Office of Information and Regulatory Affairs (\u201cOIRA\u201d) review, and other tools for presidential control. Part III describes a relatively new tool for presidential policy control\u2014criminal enforcement\u2014which recent presidents have used across many areas of administrative law. Criminal penalties are embedded within many otherwise civil regulatory regimes,17<\/a><\/sup>Many modern regulatory regimes contain criminal penalties embedded inside otherwise civil regulatory statutes. Criminal penalties exist in the Clean Water Act, the Clean Air Act, food and drug law, securities laws, immigration laws, tax laws, and more. See <\/em>discussion infra <\/em>notes 96\u2013102.<\/span> so the president has a strong incentive to use criminal enforcement. Part IV evaluates Kagan\u2019s traditional normative argument in favor of presidential administration. This Part argues that Kagan did not fully address concerns about \u201cpresidential lawlessness,\u201d which occurs when the president adopts aggressive policies that push agencies beyond their statutory mandates.18<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2349 (\u201c[T]he history of presidential administration may suggest that it poses a danger of such lawlessness\u2014that Presidents, more than agency officials acting independently, tend to push the envelope when interpreting statutes.\u201d). <\/span> Kagan believed that presidential lawlessness could be managed through judicial review, yet her reasoning applies most squarely to agency rulemaking (where judicial review is presumptively available) and less squarely to agency enforcement19<\/a><\/sup>This Article adopts Barkow\u2019s rough working definition of \u201cenforcement,\u201d which includes an agency\u2019s decisions on how to \u201cprioritize its cases,\u201d and to \u201cpick and choose from among possible targets\u201d to investigate for regulatory violations. Rachel E. Barkow, Overseeing Agency Enforcement<\/em>, 84 GEO. WASH. L. REV. 1129, 1130 (2016). The APA does not provide a definition for \u201cenforcement.\u201d Instead, the APA divides agency action into two broad categories: rulemaking and adjudication. See <\/em>5 U.S.C. \u00a7 551(5) (defining \u201crulemaking\u201d) and 5 U.S.C. \u00a7 551(7) (defining \u201cadjudication\u201d). In the APA\u2019s scheme, enforcement generally falls under the category of adjudication. <\/span> (where judicial review is harder to obtain).20<\/a><\/sup>See,<\/em> e.g.<\/em>, Michael Asimow, Greenlighting Administrative Prosecution<\/em>, 75 ADMIN. L. REV. 227, 243 (2023).<\/span> If the president opts for criminal enforcement rather than rulemaking, then he can avoid the presumption of reviewability under the Administrative Procedure Act (\u201cAPA\u201d).<\/p>\n

Finally, Part V argues for a mens rea-based constraint on the president. Under a more protective conception of mens rea, the president would be free to set general enforcement priorities, but he would be prevented from issuing binding or quasi-binding directives to lower-level officials, because binding directives squeeze out lower-level officials\u2019 ability to consider mens rea.<\/p>\n

This more protective conception of mens rea would operate in two places: in the lower courts and the Supreme Court. In the lower courts, judges would apply a more protective conception of mens rea during criminal prosecutions, as illustrated by recent cases in New Mexico.21<\/a><\/sup>See,<\/em> e.g.<\/em>, Lopez-Gonzalez<\/em>, 782 F. Supp. 3d at 1071.<\/span> In the Supreme Court, a ruling on mens rea would allow the Court to send a strong signal to prosecutors and to the president, urging the president to exercise restraint in his use of criminal enforcement. Many Justices on the Court are already deeply committed to mens rea,22<\/a><\/sup>See infra <\/em>notes 311\u201314 (discussing Justice Gorsuch\u2019s commitment to mens rea, and noting that mens rea has broad support within the Republican Party). <\/span> and they might be more willing to use mens rea, as opposed to cabining the Vesting Clause, to rein in the president\u2019s use of criminal enforcement.23<\/a><\/sup>Many Justices have adopted Justice Scalia\u2019s interpretation of the Vesting Clause, which holds that \u201call\u201d executive power is vested in the president. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting). These Justices are unlikely to adopt a Vesting Clause-based constraint on the president, because it is incompatible with Justice Scalia\u2019s version of unitary executive theory. However, a mens rea-based constraint on the president does not interfere with unitary executive theory. See Part V for a more detailed discussion.<\/span><\/p>\n

This Article draws on a wide range of scholarship from both criminal and administrative law. It was enriched by prior work on the growth of the criminal code,24<\/a><\/sup>See,<\/em> e.g.<\/em>, William Stuntz, The Pathological Politics of Criminal Law<\/em>, 100 MICH. L. REV. 505, 509 (2001) (arguing that the growth of the criminal code is a \u201cone-way ratchet\u201d driven by prosecutors and legislators). Barkow has proposed reforms to help counter the growth of the criminal code. See generally <\/em>Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law<\/em>, 61 STAN. L. REV. 869 (2009). <\/span> the federalization of criminal law,25<\/a><\/sup>See,<\/em> e.g.<\/em>, Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law<\/em>, 46 HASTINGS L.J. 1135 (1995); Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law<\/em>, 62 EMORY L.J. 1 (2012); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction<\/em>, 46 HASTINGS L.J. 979 (1995).<\/span> and the empirics of environmental crimes.26<\/a><\/sup>See,<\/em> e.g.<\/em>, David M. Uhlmann, Prosecutorial Discretion and Environmental Crime Redux: Charging Trends, Aggravating Factors, and Individual Outcome Data for 2005<\/em>\u20132014<\/em>, 8 MICH. J. ENV\u2019T & ADMIN. L. 297, 305 (2019) (analyzing environmental crime charging patterns).<\/span> Other scholarship discussed enforcement crackdowns by agencies,27<\/a><\/sup>See,<\/em> e.g.<\/em>, Mila Sohoni, Crackdowns<\/em>, 103 VA. L. REV. 31 (2017). See generally <\/em>Barkow, supra note 19; Mariano-Florentino Cu\u00e9llar, Auditing Executive Discretion<\/em>, 82 NOTRE DAME L. REV. 227 (2006).<\/span> separation of powers in the criminal law,28<\/a><\/sup>See,<\/em> e.g.<\/em>, Rachel E. Barkow, Separation of Powers and the Criminal Law<\/em>, 58 STAN. L. REV. 989, 992\u201394 (2006) (arguing that separation of powers is often more significant in criminal contexts than in civil contexts, because \u201cstate power is at its apex in the criminal context\u201d).<\/span> and the moral dimensions of regulatory crimes.29<\/a><\/sup>For excellent recent scholarship on the \u201cmoral turn\u201d in public law, see Blake Emerson, Public Care in Public Law: Structure, Procedure, and Purpose<\/em>, 16 HARV. L. & POL\u2019Y REV. 35 (2021); Jodi L. Short, The Moral Turn in Administrative Law, <\/em>Univ. of Cal. S.F. L. Sch. Rsch. Paper (forthcoming 2026) (draft manuscript) (on file with author); Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law<\/em>, 131 HARV. L. REV. 1924 (2018). For further analysis, see VINCENT CHIAO, CRIMINAL LAW IN THE AGE OF THE ADMINISTRATIVE STATE (2018); John C. Coffee, Jr., Does \u201cUnlawful\u201d Mean \u201cCriminal\u201d?: Reflections on the Disappearing Tort\/Crime Distinction in American Law<\/em>, 71 B.U. L. REV. 193 (1991); Stuart P. Green, Why It\u2019s a Crime to Tear the Tag off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses<\/em>, 46 EMORY L.J. 1533 (1997); Sanford Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations<\/em>, 30 U. CHI. L. REV. 423 (1963); Joshua Kleinfeld, Why the Mind Matters in Criminal Law<\/em>, 53 ARIZ. ST. L.J. 539 (2021).<\/span> Recent scholarship has chronicled the Court\u2019s preoccupation with criminal delegations30<\/a><\/sup>Justice Gorsuch has repeatedly revisited the question of \u201ccriminal delegations.\u201d See,<\/em> e.g.<\/em>, Gundy v. United States, 588 U.S. 128, 179 (2019) (Gorsuch, J., dissenting). Criminal delegations have also inspired a burst of recent scholarship. See,<\/em> e.g.<\/em>, Brenner M. Fissell, When Agencies Make Criminal Law<\/em>, 10 UC IRVINE L. REV. 855 (2020); Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law<\/em>, 107 VA. L. REV. 281, 298 (2021); Emma Kaufman, The Past and Persistence of Private Prosecution<\/em>, 173 U. PA. L. REV. 89 (2024); Daniel Richman, Defining Crime, Delegating Authority: How Different Are Administrative Crimes?<\/em>, 39 YALE J. ON REG. 304 (2022) [hereinafter Richman, Defining Crime<\/em>]. For some older scholarship on criminal delegations, see Dan M. Kahan, Is <\/em>Chevron Relevant to Federal Criminal Law?<\/em>, 110 HARV. L. REV. 469 (1996).<\/span> and its adoption of a strong unitary executive theory31<\/a><\/sup>See,<\/em> e.g.<\/em>, Adam B. Cox & Emma Kaufman, The Adjudicative State<\/em>, 132 YALE L.J. 1769 (2023); Blake Emerson, The Binary Executive<\/em>, 132 YALE L.J.F. 756 (2022); Cristina Rodr\u00edguez & Anya Bernstein, The Accountable Bureaucrat<\/em>, 132 YALE L.J. 1600 (2023); Cristina Rodr\u00edguez & Anya Bernstein, The Diffuse Executive<\/em>, 92 FORDHAM L. REV. 363 (2023). <\/span> based on Justice Scalia\u2019s interpretation of the Vesting Clause. This Article is deeply indebted to this array of excellent prior scholarship.<\/p>\n

II. The Traditional Toolkit for Presidential Administration<\/span><\/h4>\n

When Kagan introduced her theory of presidential administration, she described a broad toolkit of techniques for presidential control.32<\/a><\/sup>See generally <\/em>Kagan, supra <\/em>note 9.<\/span> President Reagan, for example, used OIRA, which allowed him to delay or return agency rulemakings.33<\/a><\/sup>Id. <\/em>at 2277\u201378.<\/span> President Clinton was fond of press conferences, which he used to announce new rules and to personally claim credit for agency action.34<\/a><\/sup>Id. <\/em>at 2285.<\/span> President Bush inherited an \u201carsenal\u201d of techniques from his predecessors, and he continued to expand the toolkit for presidential control.35<\/a><\/sup>Id. <\/em>at 2319 (\u201c[President] Clinton\u2019s methods of control will join Reagan\u2019s in Bush\u2019s arsenal, thus continuing the expansion of presidential administration this Article has chronicled.\u201d).<\/span> As Kagan noted, each new president had a strong incentive to preserve or expand the powers handed down by his predecessors.36<\/a><\/sup>Id.<\/em> at 2312 (\u201cThe more the demands on the President for policy leadership increase . . . the greater his incentive to [utilize] . . . his position as head of the federal bureaucracy.\u201d). <\/span><\/p>\n

A. Kagan\u2019s Original Toolkit<\/em><\/h5>\n
1. Rulemaking<\/em><\/h6>\n

In Kagan\u2019s article, rulemaking was the most frequently cited tool for presidential administration.37<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9 (Kagan\u2019s article mentions \u201crulemaking\u201d 97 times, while \u201cOIRA\u201d is mentioned 19 times, \u201cenforcement\u201d 13 times, and \u201cexecutive order\u201d 61 times).<\/span> Rulemaking allows an agency to promulgate a new rule which carries the \u201cforce and effect of law.\u201d38<\/a><\/sup>See <\/em>5 U.S.C. \u00a7 553 (describing the rulemaking process); see also<\/em> Perez v. Mortg. Bankers Ass\u2019n, 575 U.S. 92, 96 (2015) (\u201cRules issued through the notice-and-comment process are often referred to as \u2018legislative rules\u2019 because they have the \u2018force and effect of law.\u2019\u201d) (citations omitted).<\/span> Rules are typically formulated via the notice-and-comment process, which requires a notice of proposed rulemaking, a period for members of the public to submit comments, and publication in the Federal Register.39<\/a><\/sup>See,<\/em> e.g.<\/em>, Perez<\/em>, 575 U.S. at 95\u201396 (describing the notice-and-comment process).<\/span> Most pre-publication rules are reviewed by OIRA, which has the power to delay or return agency rulemakings.40<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2277\u201378 (describing the OIRA review process). <\/span> If a rule survives OIRA review, then the newly promulgated rule is considered \u201cbinding\u201d upon the agency and the public.41<\/a><\/sup>See,<\/em> e.g.<\/em>, Nat\u2019l Mining Ass\u2019n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) (describing legislative rules as rules that \u201cimpose legally binding obligations or prohibitions on regulated parties\u201d).<\/span><\/p>\n

President Clinton often used rulemaking as a substitute for legislation, because his legislation was frequently blocked in Congress. During President Clinton\u2019s two terms, Congress was mostly controlled by Republicans who proved \u201chostile\u201d to President Clinton\u2019s progressive agenda.42<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2312\u201313 (finding that President Clinton\u2019s presidential directives \u201caccelerated dramatically when the Democrats lost control of Congress in the third year of Clinton\u2019s Presidency\u201d). <\/span> President Clinton failed when he tried to enact legislation for universal healthcare,43<\/a><\/sup>Adam Clymer, National Health Program, President\u2019s Greatest Goal, Declared Dead in Congress, <\/em>N.Y. TIMES (Sep. 27, 1994), https:\/\/www.nytimes.com\/1994\/09\/27\/us\/health-care-debate-overview-national-health-program-president-s-greatest-goal.html [https:\/\/perma.cc\/3MQW-XXMW].<\/span> failed when he attempted to legislate tobacco restrictions,44<\/a><\/sup>John F. Harris & Ceci Connolly, President Clinton Suffers Major Defeat on Tobacco<\/em>, WASH. POST (June 17, 1998), https:\/\/www.proquest.com\/newspapers\/clinton-suffers-major-defeat-on-tobacco\/docview\/408370246\/se-2?accountid=189667 [https:\/\/perma.cc\/A84D-CE5N] (describing President Clinton\u2019s anti-tobacco bill which died in Congress). <\/span> and failed again when he pursued other legislative goals.45<\/a><\/sup>Id. <\/em>(\u201cDemocrats yesterday acknowledged that most of the items left on President Clinton\u2019s plate\u2014such as a minimum wage increase and a \u2018Health Care Bill of Rights\u2019 regulating health maintenance organizations\u2014are far less likely to become law . . . .\u201d).<\/span> Rulemaking allowed President Clinton to accomplish what he had been unable to accomplish through legislation.<\/p>\n

As Kagan noted, President Clinton inserted himself at every stage of the rulemaking process. He announced new rules before the agency initiated the rulemaking process, he weighed in on rules as they made their way through OIRA review, and he personally claimed credit for new rules after they were finalized.46<\/a><\/sup>Kagan, supra <\/em>note 9, at 2282\u201384 (describing President Clinton\u2019s interventions into anti-tobacco rulemaking and rulemaking about paid family leave, and noting that President Clinton often \u201cpublicly entered a rulemaking\u201d at various rulemaking stages).<\/span> In some instances, President Clinton even dictated the specific contents of some rules: for example, when President Clinton announced a new anti-tobacco rule, he described six specific proposals (including a ban on \u201cJoe Camel\u201d advertising for children and a prohibition on \u201ccigarette vending machines\u201d in schools).47<\/a><\/sup>See <\/em>The President\u2019s News Conference, 31 WEEKLY COMP. PRES. DOC. 1415 (Aug. 10, 1995) (describing six proposals to limit cigarettes for kids, including I.D. requirements for cigarette sales, a prohibition on \u201ccigarette vending machines,\u201d and a ban on \u201cJoe Camel\u201d images targeted towards kids).<\/span> After the agency completed its rulemaking process, President Clinton\u2019s six proposals were included in the agency\u2019s final rule, essentially unchanged.48<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2283 (noting that the final rule \u201cincorporated a number of changes\u201d but that \u201cnone\u201d of these changes \u201cwent to the heart of the regulatory proposal (or to the President\u2019s public comments)\u201d).<\/span><\/p>\n

2. Civil Enforcement<\/em><\/h6>\n

Civil enforcement was a secondary tool in President Clinton\u2019s toolkit, one which he used \u201cless frequently\u201d than rulemaking.49<\/a><\/sup>Andrias, supra <\/em>note 12, at 1060 (\u201cWhile [President] Clinton focused on enforcement, he did so less frequently, and rarely with respect to identifiable parties.\u201d).<\/span> Kagan described two significant civil enforcement efforts from President Clinton, against tobacco companies50<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2306 (noting that President Clinton \u201cinvolved himself in the development and implementation of enforcement policy, even (albeit rarely) as to decisions to prosecute identifiable parties like manufacturers of handguns or tobacco products\u201d).<\/span> and gun manufacturers.51<\/a><\/sup>See id. <\/em>at 2305 (describing President Clinton\u2019s firearms policies where President Clinton began \u201cdirecting and appropriating not only rulemakings but enforcement strategies\u201d). <\/span> Oftentimes, President Clinton\u2019s civil enforcement efforts were accompanied by rulemakings: his tobacco enforcement announcement, for example, followed his push for an anti-tobacco rulemaking.52<\/a><\/sup>See id. <\/em>at 2302 (noting that President Clinton used his 1999 State of the Union Address to announce that \u201cthe Justice Department is preparing a litigation plan to take the tobacco companies to court\u201d (quoting Address Before a Joint Session of Congress on the State of the Union, 1 PUB. PAPERS 62, 66 (Jan. 19, 1999))). <\/span><\/p>\n

When Kagan discussed civil enforcement by President Clinton, she sounded a rare note of caution, even disapproval.53<\/a><\/sup>See id. <\/em>at 2357\u201358 (arguing for a \u201cprohibit[ion]\u201d on presidential direction in specific <\/em>cases of civil enforcement).<\/span> She argued that specific enforcement actions might tempt the president to engage in \u201cthe crassest form of politics,\u201d such as the pursuit of \u201cpersonal favors and vendettas.\u201d54<\/a><\/sup>Id. <\/em><\/span> Presidential interventions should be discouraged in enforcement cases,55<\/a><\/sup>See id. <\/em>at 2358 n.423 (discouraging \u201cpresidential direction\u201d in civil enforcement cases like \u201cdecisions to file suit against discrete entities such as Microsoft or the tobacco industry\u201d).<\/span> she said, and she even proposed a \u201cprohibition\u201d on presidential administration in specific enforcement actions.56<\/a><\/sup>Id. <\/em>at 2357\u201358 (\u201cThese considerations, taken together, make me set the appropriate boundaries on presidential direction . . . in an untraditional place\u2014prohibiting this direction when, but only when, the government exercises prosecutorial authority.\u201d); see also id. <\/em>at 2358 n.423 (discussing her \u201cprohibition\u201d on presidential interventions and clarifying that the prohibition extends only to specific enforcement actions but not to \u201cbroad enforcement policy or strategy\u201d).<\/span><\/p>\n

Kagan\u2019s prohibition was inspired by the risks of abuse. Enforcement decisions center on \u201cparticular individuals and firms,\u201d57<\/a><\/sup>Id. <\/em>at 2357\u201358.<\/span> Kagan noted, which created a \u201cdanger\u201d of politicized and unprofessional decisions.58<\/a><\/sup>Id. <\/em>(noting that presidential intervention into specific enforcement cases \u201cpose[s] the greatest danger of displacing professionalism and thereby undermining confidence in legal decisionmaking\u201d).<\/span> If the president involved himself in selecting specific enforcement targets, he might target his political rivals or pursue \u201cvendettas\u201d or \u201cfavors.\u201d59<\/a><\/sup>See supra <\/em>note 54 and accompanying text.<\/span> To avoid these risks, Kagan favored a \u201cprohibition\u201d on presidential administration in specific enforcement cases.60<\/a><\/sup>Kagan, supra <\/em>note 9, at 2358 n.423.<\/span> Notably, Kagan\u2019s prohibition applied only to specific enforcement actions but not to general enforcement policy.61<\/a><\/sup>Kagan did not elaborate further on the difference between specific enforcement cases and general enforcement policy, so her distinction remains somewhat amorphous. See<\/em> id. <\/em>at 2357\u201358.<\/span> As Kagan clarified:<\/p>\n

I do not mean this prohibition to include the articulation of broad enforcement policy or strategy, of the kind President Clinton sometimes made part of his program of administrative governance . . . . I do mean to raise serious questions about presidential direction of decisions to file suit against discrete entities . . . .62<\/a><\/sup>Id. <\/em>at 2358 n.423.<\/span><\/p>\n

As Kagan herself acknowledged, her \u201cprohibition\u201d cut against the grain of traditional theories, particularly unitary executive theory.63<\/a><\/sup>Id. <\/em>at 2357\u201358 (acknowledging that her prohibition falls \u201cin an untraditional place\u201d).<\/span> Unitary executive theory views enforcement as \u201cthe heart\u201d of presidential power.64<\/a><\/sup>Id. <\/em>(discussing unitary executive theory as articulated by Justice Scalia); see also <\/em>Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) (arguing that prosecution and enforcement are \u201cquintessentially\u201d executive powers).<\/span> Part V will discuss unitary executive theory in more detail.<\/p>\n

3. OIRA Review, Press Conferences, and Other Tools<\/em><\/h6>\n

In addition to discussing rulemaking and civil enforcement, Kagan also mentioned additional tools for presidential administration, including OIRA review, press conferences, and executive orders. According to Kagan, different presidents favored different \u201cmethods of control,\u201d depending on their personalities and the tools available to them.65<\/a><\/sup>See <\/em>Kagan, supra <\/em>note 9, at 2319 (discussing the \u201cmethods of control\u201d used by Presidents Reagan, Clinton, and Bush).<\/span> For example, President Reagan preferred to use the OIRA review process, which gave him greater control over rulemaking.66<\/a><\/sup>See<\/em> id. <\/em>at 2277\u201378 (describing Reagan\u2019s Executive Order 12,291, which established the OIRA review process).<\/span> Via OIRA, the White House could delay, dilute, or even defeat agency rulemakings.67<\/a><\/sup>See id. <\/em>(arguing that OIRA review gave the White House \u201ca form of substantive control over rulemaking\u201d because OIRA could \u201cprevent publication of a proposed or final rule, even indefinitely, until the completion of the review process\u201d).<\/span><\/p>\n

President Clinton perfected the art of the press conference, which he used to announce high-profile executive orders. In Kagan\u2019s count, President Clinton issued 107 executive orders, compared to only nine by President Reagan.68<\/a><\/sup>See id.<\/em> at 2294\u201395.<\/span> According to President Clinton\u2019s chief speechwriter, \u201cThe White House settled into a rat-a-tat-tat of announcements and statements. A \u2018message event\u2019 of the day. Each one with an element of news\u2014issuing an executive order, announcing the results of a study, setting a regulation, passing out grants.\u201d69<\/a><\/sup>Id.<\/em> at 2300 (quoting MICHAEL WALDMAN, POTUS SPEAKS: FINDING THE WORDS THAT DEFINED THE CLINTON PRESIDENCY 16 (2000)).<\/span> Another Clinton aide joked that \u201cwe expect that we\u2019ll be producing executive orders until the morning he leaves office.\u201d70<\/a><\/sup>Id. <\/em>at 2296 (quoting Alexis Simendinger, An Executive Endgame Takes Shape<\/em>, 32 NAT\u2019L J. 628, 628 (2000)).<\/span><\/p>\n

After President Clinton left office, he handed down an expanded toolkit to President Bush, who inherited an \u201carsenal\u201d from his predecessors.71<\/a><\/sup>Id. <\/em>at 2319.<\/span> President Bush took office a few months before Kagan published her article,72<\/a><\/sup>Kagan\u2019s article was published in June 2001. President George W. Bush took office in January 2001.<\/span> and Kagan (correctly) predicted that President Bush would be an enthusiastic adopter of presidential administration, despite some early predictions to the contrary.73<\/a><\/sup>See <\/em>Kagan,<\/em> supra<\/em> note 9, at 2317 (\u201cMy prediction flies in the face of conventional wisdom regarding Bush\u2019s management style . . . . [T]he New York Times<\/em> has reported broad consensus that Bush, as compared with Clinton, will \u2018delegat[e] more authority\u2019 to executive agency heads, \u2018[s]ignaling [a] [r]eduction in [the] [r]ole of [the] White House [s]taff.\u2019\u201d) (citation omitted).<\/span> According to Kagan, President Bush was \u201cunlikely\u201d to voluntarily \u201ccede\u201d the presidential powers which had been built up by Presidents Reagan and Clinton.74<\/a><\/sup>Id.<\/em><\/span> Kagan noted that President Bush had taken an \u201caggressive posture\u201d in the OIRA process,75<\/a><\/sup>Id. <\/em>at 2318 (\u201cBush\u2019s choice for the administrator of OIRA suggests an intent to renew an aggressive posture toward the agencies in the regulatory review process . . . .\u201d).<\/span> and she predicted that President Bush would use his powers to advance a deregulatory agenda, as President Reagan had.76<\/a><\/sup>Id. <\/em>(noting that President Bush often cited \u201cthe economic costs of regulatory decisions\u201d as a drag on businesses, as had Reagan).<\/span><\/p>\n

B. Expanding the Toolkit<\/em><\/h5>\n

In the decades since Kagan\u2019s article, scholars have identified numerous additional tools for presidential control. This section briefly summarizes the expanded presidential toolkit, which includes tools like agency funding, agency personnel, and agency nonenforcement.<\/p>\n

1. Agency Funding<\/em><\/h6>\n

Agency funding has gained renewed attention since 2025, when President Trump began actively intervening into areas like foreign aid spending and federal research grants.77<\/a><\/sup>The Trump administration has \u201cpaused foreign aid spending; imposed conditions on grants and spending programs related to these issues; [and] threatened to rescind hundreds of millions to billions of dollars in funding for individual universities.\u201d See <\/em>Matthew B. Lawrence, Eloise Pasachoff & Zachary S. Price, Appropriations Presidentialism<\/em>, 114 GEO. L. J. ONLINE 1, 4 (2025) (internal citations omitted).<\/span> These interventions have been called \u201cappropriations presidentialism,\u201d a term coined by Eloise Pasachoff, Zachary Price, and Matthew Lawrence.78<\/a><\/sup>See id.<\/em><\/span> In their recent article, they argue that President Trump\u2019s actions represent a \u201cdramatic, destabilizing expansion of a preexisting trend.\u201d79<\/a><\/sup>Id. <\/em>at 5.<\/span> They follow the preexisting trend to President Obama, who used his powers to implement the Affordable Care Act\u2019s cost-sharing reductions.80<\/a><\/sup>See id. <\/em>at 3 (discussing U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165 (D.D.C. 2016) and Nicholas Bagley\u2019s analysis of the Affordable Care Act). Bagley wrote, presciently, that President Obama\u2019s attempts to shore up the Affordable Care Act had weakened Congress\u2019s appropriations power and might \u201cembolden\u201d future presidents to intervene more aggressively into agency funding. See <\/em>Nicholas Bagley, Legal Limits and the Implementation of the Affordable Care Act<\/em>, 164 U. PA. L. REV. 1715, 1735 (2016) (\u201cIt\u2019s impossible to anticipate the full consequences of weakening the legislature\u2019s power of the purse . . . [b]ut the Administration\u2019s efforts to put the ACA on surer financial footing may embolden the next president to further slip the reins of legislative control . . . .\u201d).<\/span> However, they argue that President Trump has aggressively expanded the president\u2019s powers in ways not undertaken by previous presidents. For example, the Trump White House accessed the Treasury Department\u2019s payment system, which historically has not been used for policymaking,81<\/a><\/sup>See<\/em> Lawrence et al.<\/em>, supra <\/em>note 77, at 14.<\/span> cut off funds without following agencies\u2019 own internal procedures,82<\/a><\/sup>See id. <\/em>at 12 (\u201c[I]t has threatened to cut off funds immediately based on any alleged noncompliance; in some instances, it has actually followed through on this threat, pausing or terminating existing grants without reference to agencies\u2019 prescribed internal processes for such funding changes.\u201d).<\/span> and clawed back funds already disbursed.83<\/a><\/sup>See id.<\/em><\/span> Pasachoff, Price, and Lawrence critique President Trump\u2019s \u201cdramatic escalation\u201d of appropriations presidentialism,84<\/a><\/sup>See id. <\/em>at 14.<\/span> and they urge Congress to reassert its power over the purse.85<\/a><\/sup>For a small sample of recent work discussing Congress\u2019s appropriations power, see generally Bagley, supra <\/em>note 80; Jonathan S. Gould, A Republic of Spending<\/em>, 123 MICH. L. REV. 209 (2024); Matthew B. Lawrence, Disappropriation<\/em>, 120 COLUM. L. REV. 1 (2020); Gillian E. Metzger, Taking Appropriations Seriously<\/em>, 121 COLUM. L. REV. 1075 (2021); Eloise Pasachoff, Modernizing the Power of the Purse Statutes<\/em>, 92 G.W. L. REV. 359 (2024); Zachary S. Price, Funding Restrictions and Separation of Powers<\/em>, 71 VAND. L. REV. 357 (2018).<\/span><\/p>\n

2. Agency Personnel & Capacity<\/em><\/h6>\n

Presidents can influence agency capacity by changing an agency\u2019s high-level leadership or lower-level personnel. In recent years, Anne Joseph O\u2019Connell has documented the president\u2019s use of \u201cactings,\u201d or temporary agency leadership.86<\/a><\/sup>See generally <\/em>Anne Joseph O\u2019Connell, Actings<\/em>, 120 COLUM. L. REV. 613 (2020).<\/span> By appointing \u201cactings,\u201d the president can bypass the usual Senate confirmation process and exert greater control over agency leadership.87<\/a><\/sup>See id.<\/em> at 667.<\/span> More recently, Nicholas Bednar has shed new light on agency \u201ccapacity,\u201d which includes know-how by lower-level staff.88<\/a><\/sup>See <\/em>Nicholas R. Bednar, Presidential Control and Administrative Capacity<\/em>, 77 STAN. L. REV. 823, 829 (2025) (\u201cI define \u2018capacity\u2019 as the expertise, experience, and team production that allow agencies to choose between policy alternatives and navigate the procedural requirements of the Administrative Procedure Act (APA).\u201d).<\/span> As Bednar writes, \u201cSome agencies are overworked, under-resourced, and poorly managed,\u201d and these capacity issues can derail the president\u2019s agenda even in agencies that are broadly aligned with the president\u2019s policies.89<\/a><\/sup>Id. <\/em>at 830.<\/span> Agency capacity has also been discussed by Jody Freeman and Sharon Jacobs, who have warned that the president can \u201chollow out\u201d agencies by deliberately pushing out \u201ckey staff.\u201d90<\/a><\/sup>Jody Freeman & Sharon Jacobs, Structural Deregulation<\/em>, 135 HARV. L. REV. 585, 597 (2021).<\/span><\/p>\n

3. Nonenforcement<\/em><\/h6>\n

Finally, many scholars have written about nonenforcement, which gained national attention during President Obama\u2019s policy on Deferred Action for Childhood Arrivals (\u201cDACA\u201d). DACA hinged on nonenforcement: immigration agencies were told to cease enforcement against immigrants who had been brought to the United States as children, who had earned a high school diploma, and who met other requirements.91<\/a><\/sup>See <\/em>Memorandum from Janet Napolitano, Sec\u2019y, U.S. Dep\u2019t of Homeland Sec., to David Aguilar, Acting Comm\u2019r, U.S. Customs & Border Prot., et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (June 15, 2012), https:\/\/www.dhs.gov\/xlibrary\/assets\/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [http:\/\/perma.cc\/DH5S-3NXN].<\/span> DACA also allowed immigrants to apply for employment authorization documents.92<\/a><\/sup>See id.<\/em><\/span><\/p>\n

DACA kicked off a flurry of nonenforcement scholarship. Kate Andrias, for example, found that President Obama was not the only president who used nonenforcement: President Bush, for example, had dialed back enforcement of environmental regulations.93<\/a><\/sup>See <\/em>Andrias, supra <\/em>note 12, at 1062\u201363 (\u201c[T]here was an overall decline in enforcement at the EPA during the Bush Administration. This included some announced policies of nonenforcement.\u201d).<\/span> Nonenforcement also attracted the attention of constitutional scholars, including John Yoo, Robert Delahunty, Zachary Price, Mila Sohoni, and many others.94<\/a><\/sup>See<\/em>, e.g.<\/em>, Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration\u2019s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause<\/em>, 91 TEX. L. REV. 781 (2013); Zachary S. Price, Enforcement Discretion and Executive Duty<\/em>, 67 VAND. L. REV. 671 (2014).<\/span> Some scholars argued that the Take Care Clause was flexible enough to accommodate policies like DACA, while others argued against a broad nonenforcement policy like DACA.95<\/a><\/sup>See generally, e.g.<\/em>, Zachary S. Price, Faithful Execution in the Fifty States<\/em>, 57 GA. L. REV. 651 (2023) (discussing prosecutorial discretion and \u201cfaithful execution\u201d at the state level); Sohoni, supra <\/em>note 27, at 89\u201392 (discussing the Take Care Clause and the president\u2019s duty to faithfully execute the laws).<\/span><\/p>\n

* * *<\/p>\n

The toolkit for presidential administration was already large when Kagan described it in 2001, and it has grown even larger since. In the interest of space, this Article provides only a brief discussion, since this is already well-trodden ground. Next, this Article turns to a relatively new tool for presidential administration: criminal enforcement.<\/p>\n

III. Criminal Enforcement as a New Tool for Presidential Control<\/span><\/h4>\n

The president has strong incentives to utilize criminal enforcement for regulatory control, because criminal enforcement is widely available and is more strongly deterrent than civil enforcement. Part III.A describes incentives for the president, who can use criminal enforcement across the many regulatory areas where criminal penalties are embedded alongside civil penalties. Part III.B describes examples from the Bush, Obama, Biden, and Trump administrations.<\/p>\n

A. Incentives for the President to Use Criminal Enforcement<\/em><\/h5>\n

For the president, criminal enforcement may present an attractive option. First, criminal enforcement is widely available, because many regulatory regimes contain both civil and criminal penalties. Second, criminal enforcement carries a stronger deterrent effect, because criminal penalties are typically heavier than civil penalties. Third, the president can amplify the uptake of criminal referrals, because he has the power to direct agencies (which investigate regulatory violations) as well as the Justice Department (which receives criminal referrals from agencies).<\/p>\n

1. Widely Available Criminal Penalties<\/em><\/h6>\n

Regulatory statutes often include both civil and criminal penalties. For example, criminal penalties exist in environmental regulations,96<\/a><\/sup>The Clean Water Act of 1972, codified at 33 U.S.C. \u00a7\u00a7 1251\u20131389, contains criminal penalties for some violations. See,<\/em> e.g.<\/em>, 33 U.S.C. \u00a7 1319(c)(1)(B) (\u201cAny person who negligently introduces into a sewer system . . . any pollutant or hazardous substance . . . shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or by both.\u201d). Similarly, the Clean Air Act of 1963, codified at 42 U.S.C. \u00a7\u00a7 7401\u20137675, contains some criminal penalties. See,<\/em> e.g.<\/em>, 42 U.S.C. \u00a7 7413(c)(2)(C) (\u201cAny person who knowingly . . . falsifies, tampers with, renders inaccurate, or fails to install any monitoring device . . . required to be maintained or followed under this chapter . . . shall, upon conviction, be punished by a fine pursuant to Title 18 or by imprisonment for not more than 2 years, or both.\u201d).<\/span> food and drug law,97<\/a><\/sup>The Federal Food, Drug, and Cosmetic Act was first enacted in 1938 and was amended throughout the 1970s and 1980s. See <\/em>21 U.S.C. \u00a7\u00a7 301\u2013399i.<\/em> The Act contains several criminal provisions. See, e.g.<\/em>, 21 U.S.C. \u00a7 333(a) (\u201cAny person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both.\u201d); 21 U.S.C. \u00a7 376 (\u201cAny person who forges, counterfeits, simulates, or falsely represents . . . any mark, stamp, tag, label, or other identification devices . . . shall be guilty of a misdemeanor . . . .\u201d).<\/span> securities law,98<\/a><\/sup>Securities violations may be criminally punishable under 18 U.S.C. \u00a7 1348 and other statutes.<\/span> antitrust law,99<\/a><\/sup>See,<\/em> e.g.<\/em>, 15 U.S.C. \u00a7 1 (establishing criminal penalties for antitrust violations, including criminal fines and imprisonment up to 10 years). <\/span> tax law,100<\/a><\/sup>The tax code imposes criminal penalties for \u201cwillful failure to collect or pay over tax,\u201d 26 U.S.C. \u00a7 7202, and other tax violations. <\/span> immigration law,101<\/a><\/sup>See,<\/em> e.g.<\/em>, 8 U.S.C. \u00a7 1325 (establishing criminal penalties for \u201cimproper entry by alien\u201d).<\/span> and other areas. According to Lawrence Solan, \u201c[s]tatutes that contain both civil remedies and criminal penalties are typical in the modern regulatory state.\u201d102<\/a><\/sup>Lawrence M. Solan, Statutory Inflation and Institutional Choice<\/em>, 44 WM. & MARY L. REV. 2209, 2211 (2003) (describing criminal penalties in statutes such as \u201cRICO, the antitrust laws, the securities laws, environmental laws such as the Clean Water Act, various tax statutes, the Copyright Act, and the Bankruptcy Code\u201d (footnotes omitted)).<\/span><\/p>\n

The number of criminal penalties has grown \u201cexplosively\u201d since the 1970s.103<\/a><\/sup>CRIM. JUST. SECTION, AM. BAR ASS\u2019N, THE FEDERALIZATION OF CRIMINAL LAW 7 (1998) [hereinafter ABA Report], https:\/\/www.nacdl.org\/Document\/ABAFederalizationofCriminalLawReport [https:\/\/perma.cc\/EG4P-CCHC].<\/span> Several authors have attempted to count the number of criminal penalties embedded in the United States Code; while the authors do not agree on an exact number, all agree that the number has grown significantly.104<\/a><\/sup>In chronological order, the studies are: (1) In 1989, a report from the Justice Department\u2019s Office of Legal Policy, see <\/em>Ronald L. Gainer, Report to the Attorney General on Federal Criminal Code Reform<\/em>, 1 CRIM L.F. 99 (1989); (2) In 1998, the ABA Report, supra <\/em>note 103; (3) In 2004, a study by John Baker, see <\/em>John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation<\/em>, FEDERALIST SOC\u2019Y REV. (2004) [hereinafter Baker Report 2004], https:\/\/fedsoc.org\/fedsoc-review\/measuring-the-explosive-growth-of-federal-crime-legislation [https:\/\/perma.cc\/T5VY-JLBD]; (4) In 2008, a follow-up study by Baker, see <\/em>John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes<\/em>, HERITAGE FOUND. (June 16, 2008) [hereinafter Baker Report 2008], https:\/\/www.heritage.org\/report\/revisiting-the-explosive-growth-federal-crimes [https:\/\/perma.cc\/E388-XPHE]; (5) In 2022, the Count the Code Report, see <\/em>GIANCARLO CANAPARO, PATRICK MCLAUGHLIN, JONATHAN NELSON & LIYA PALAGASHVILI, COUNT THE CODE: QUANTIFYING FEDERALIZATION OF CRIMINAL STATUTES, NO. 251, HERITAGE FOUND. (2022) [hereinafter Count the Code], https:\/\/www.heritage.org\/crime-and-justice\/report\/count-the-code-quantifying-federalization-criminal-statutes [https:\/\/perma.cc\/6JR9-93ST]; (6) In 2025, a study by Faiz Surani et al., which used large language models to detect criminal penalties in the United States Code, see <\/em>Faiz Surani, Lindsey A. Gailmard, Allison Casasola, Varun Magesh, Emily J. Robitschek & Daniel E. Ho, What Is the Law? A System for Statutory Research (STARA) with Large Language Models, in <\/em>ICAIL \u201925: PROCEEDINGS OF THE TWENTIETH INTERNATIONAL CONFERENCE ON ARTIFICIAL INTELLIGENCE AND LAW 394 (Juliano Maranh\u00e3o ed., 2025); (7) A forthcoming study by Sean Farhang & Andrea Roth, which traces the growth of federal crimes from 1887 onward, see <\/em>Sean Farhang & Andrea Roth, Congress and Criminalization <\/em>(unpublished manuscript) (on file with author).<\/span> In 1998, for example, the American Bar Association found that \u201cover forty percent\u201d of federal crimes \u201chave been created since 1970.\u201d105<\/a><\/sup>ABA Report, supra <\/em>note 103, at 2. <\/span> In 2004 and 2008, two studies from John Baker found several hundred new federal crimes.106<\/a><\/sup>Baker Report 2008, supra <\/em>note 104, at 5 (\u201cMy 2004 report, however, concluded that a large percentage of the new crimes came in the environmental area. For the years 2000 through 2007, many of the new crimes were in the following areas: [n]ational security . . . [t]errorism and support for terrorists . . . and [c]ontrols on the Internet.\u201d).<\/span> A more recent January 2022 study found 1,510 sections of the Code that created at least one federal crime,107<\/a><\/sup>The 2018 version of the U.S. Code had 48,367 sections total, and of these sections, 1,510 sections created at least one crime. See <\/em>Count the Code, supra <\/em>note 104, at 3.<\/span> and a subsequent study found additional sections that had been overlooked by the 2022 study.108<\/a><\/sup>Surani et al., supra<\/em> note 104, at 397 (\u201cUsing STARA, we identify 2,305 criminal provisions with 98% precision\u2014nearly 8,800 more provisions than previously documented.\u201d).<\/span><\/p>\n

It has been difficult to quantify the number of criminal penalties in the Code because criminal penalties are scattered throughout many different parts of the Code and they are often embedded in otherwise civil regulatory regimes. For example, the National Wildlife Refuge System Administration Act regulates wilderness conservation. The Act is usually civilly administered by the Fish and Wildlife Service,109<\/a><\/sup>16 U.S.C. \u00a7 668dd; see also<\/em> Cam Tredennick, The National Wildlife System Improvement Act of 1997: Defining the National Wildlife Refuge System for the Twenty-First Century<\/em>, 12 FORDHAM ENV\u2019T L. REV. 41, 44\u201359 (2000) (discussing the National Wildlife Refuge System Administration Act of 1966).<\/span> yet it also includes criminal penalties, such as the following:<\/p>\n

Any person who knowingly violates or fails to comply with any of the provisions of this Act or any regulations issued thereunder shall be fined under [T]itle 18 or imprisoned for not more than 1 year, or both.110<\/a><\/sup>16 U.S.C. \u00a7 668dd(f)(1).<\/span><\/p>\n

The statute uses the word \u201cimprisoned,\u201d which denotes a criminal, not civil, penalty.111<\/a><\/sup>The statute also uses the word \u201cfine,\u201d which might imply a civil or criminal penalty depending on the context. See <\/em>Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law<\/em>, 101 YALE L.J. 1795 (1992). In this context, however, the statute refers to Title 18 of the U.S. Code, which governs federal criminal law, making these fines likely to be criminal in nature.<\/span> Throughout the Code, keywords like \u201cimprisonment,\u201d \u201cshall be punished,\u201d and \u201cshall be guilty of\u201d112<\/a><\/sup>See<\/em> Count the Code, supra <\/em>note 104, at 8\u201310 (locating criminal penalties in the U.S. Code by searching for keywords like: \u201cBe fined under this title or imprisoned\u201d; \u201cImprisonment for not more than\u201d; \u201cBe punished by a fine\u201d; and \u201cShall be guilty of\u201d).<\/span> are used to create criminal penalties, which are often embedded into otherwise civil regulatory regimes.113<\/a><\/sup>Id<\/em>. at 3 (finding 1,510 statutes \u201cthat create at least one crime\u201d in the 2018 version of the U.S. Code).<\/span><\/p>\n

In recent years, many scholars have attempted to explain the \u201cexplosive growth\u201d of criminal penalties.114<\/a><\/sup>ABA Report, supra <\/em>note 103, at 7.<\/span> Some scholars blame overcriminalization and the \u201ctough on crime\u201d movement.115<\/a><\/sup>See,<\/em> e.g.<\/em>, Brickey, supra <\/em>note 25, at 1145 (\u201cCongress simply could not resist the citizens\u2019 demands to be \u2018tough on crime\u2019 because crime had assumed the spotlight as a national political issue.\u201d); Judith Greene, Getting Tough on Crime: The History and Political Context of Sentencing Reform Developments Leading to the Passage of the 1994 Crime Act<\/em>, in<\/em> SENTENCING AND SOCIETY: INTERNATIONAL PERSPECTIVES 43 (Cyrus Tata & Neil Hutton eds., 2002).<\/span> Alternatively, William Stuntz has argued that legislative incentives are the primary driver of federal criminal legislation.116<\/a><\/sup>Stuntz, Politics of Criminal Law<\/em>, supra <\/em>note 24, at 509 (arguing that the \u201ctough on crime\u201d explanation is powerful but \u201cincomplete,\u201d and proposing an incentive-based explanation whereby legislators and prosecutors have strong incentives to enact more criminal statutes).<\/span> Whatever the reason, the past fifty years have seen a substantial increase in federal criminal provisions.117<\/a><\/sup>See supra <\/em>note 108.<\/span> Criminal penalties exist in many modern regulatory regimes, thus creating more opportunity for criminal enforcement direction by the president.<\/p>\n

2. Strong Deterrent Effect<\/em><\/h6>\n

Criminal penalties are often more severe than civil penalties, and many theorists have argued that criminal penalties have a stronger deterrent effect.118<\/a><\/sup>See, e.g.<\/em>, Henry M. Hart, Jr., The Aims of the Criminal Law<\/em>, 23 L. & CONTEMP. PROBS. 401, 404 (1958) (arguing that criminal penalties involve a \u201cjudgment of community condemnation\u201d); see <\/em>Mann, supra <\/em>note 111, at 1809 (discussing the \u201cspecial stigma\u201d associated with criminal penalties as opposed to civil penalties); see also id.<\/em> at 1811 (\u201c[C]riminal penalties are thought to be more severe than civil penalties.\u201d).<\/span> For example, William Stuntz, who wrote about the civil-criminal distinction, noted that:<\/p>\n

Criminal punishment often means prison, and prison is both different from and worse than money damages. It is also, by definition, worse than nonmonetary civil sanctions: Injunctions take away the freedom to do certain things, while prison takes away the freedom to do just about anything that prison officials don\u2019t want you to do.119<\/a><\/sup>William J. Stuntz, Substance, Process, and the Civil-Criminal Line<\/em>, 7 J. CONTEMP. LEGAL ISSUES 1, 24 (1996).<\/span><\/p>\n

Stuntz, like many criminal theorists, acknowledged that deterrence is not the only <\/em>goal of criminal punishment. Such punishment may also aim to rehabilitate, to incapacitate the wrongdoer, to restore the social standing of the victim, or to accomplish a wide variety of other goals.120<\/a><\/sup>See <\/em>Hart, supra <\/em>note 118 (discussing the multiple goals of the criminal law).<\/span> As Henry Hart, Jr. put it, deterrence need not be \u201cthe overriding and ultimate purpose of the criminal law, important though it is.\u201d121<\/a><\/sup>Id. <\/em>at 409.<\/span><\/p>\n

Yet despite competing theories, many theorists nevertheless agree that criminal penalties have a stronger deterrent effect than civil penalties. This intuition is borne out in the empirical literature, including a recent article by Nicholas Parrillo, who studied enforcement against large companies and healthcare providers.122<\/a><\/sup>See <\/em>Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries<\/em>, 36 YALE J. ON REG. 165 (2019).<\/span> According to one attorney interviewed by Parrillo, the fear of criminal enforcement \u201cwas the main reason people in the industry followed [agency] guidance.\u201d123<\/a><\/sup>Id. <\/em>at 216.<\/span> Another interviewee noted that announcements about criminal indictments could trigger a \u201cbuilt-in level of hysteria\u201d in the industry.124<\/a><\/sup>Id.<\/em><\/span><\/p>\n

3. Amplified Uptake of Criminal Referrals<\/em><\/h6>\n

Finally, the president can amplify uptake of criminal referrals, because he can direct the Justice Department to accept criminal referrals from agencies.125<\/a><\/sup>As Richman has written, the Justice Department holds a \u201cmonopoly\u201d over federal criminal prosecutions. See <\/em>Richman, Prosecutors and Their Agents<\/em>, supra <\/em>note 7, at 758. Richman has also noted that the Justice Department frequently declines referrals, and he has written that it is \u201cquite difficult for regulatory agencies to get prosecutors to take their cases.\u201d Richman, Defining Crime<\/em>, supra <\/em>note 30, at 366.<\/span> When agencies refer their cases for criminal prosecutions, their referrals are sometimes declined by the Justice Department.126<\/a><\/sup>See infra<\/em> notes 145\u201348.<\/span> But the president can increase uptake of criminal referrals by simultaneously directing (a) agency investigations of regulatory violations and (b) Justice Department prosecutions.<\/p>\n

a. Agency Investigations of Regulatory Violations<\/em><\/h6>\n

Administrative agencies typically investigate regulatory violations in their areas. According to Daniel Richman, a former federal prosecutor, agencies have \u201cthe expertise, the manpower, the technical resources, and, perhaps most importantly, the informational networks that no U.S. Attorney\u2019s Office possesses.\u201d127<\/a><\/sup>Richman, supra <\/em>note 7, at 767\u201368.<\/span> In many cases, federal prosecutors will \u201cnot even know that a crime has been committed\u201d until an agency refers a criminal case to the Justice Department.128<\/a><\/sup>Id.<\/em> at 768.<\/span><\/p>\n

Mens rea, also known as scienter<\/em> or \u201cguilty mind,\u201d typically divides criminal offenses from civil offenses. Some tax statutes, for example, allow civil penalties for good-faith mistakes, yet tax errors can become criminally punishable if the offender acted willfully or with some other culpable mental state.129<\/a><\/sup>See,<\/em> e.g.<\/em>, Cheek v. United States, 498 U.S. 192, 199\u2013200 (1991) (\u201cThe proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses.\u201d) (citations omitted).<\/span> Similarly, environmental violations are usually sanctioned with civil fines, yet violators may become criminally liable if the agency uncovers evidence of willfulness, intent to deceive, or other aggravating factors.130<\/a><\/sup>David M. Uhlmann, Prosecutorial Discretion and Environmental Crime<\/em>, 38 HARV. ENV\u2019T L. REV. 159, 164\u201366 (2014) [hereinafter Uhlmann, Environmental Crime<\/em>]; see also id.<\/em> at 198 (\u201cI have suggested that lying is the most significant factor in making a criminal case out of what otherwise might be a civil or administrative violation. If this premise is true and a high percentage of criminal cases involve deceptive or misleading conduct, it could address concerns that law-abiding individuals are being unfairly targeted with criminal prosecution.\u201d).<\/span><\/p>\n

Agencies that conduct criminal investigations must also \u201cconvince a prosecutor to take the case.\u201d131<\/a><\/sup>Richman, supra <\/em>note 7, at 758.<\/span> Per Robert Rabin, agencies that acquire a \u201creputation for poor quality preparatory work\u201d may find that prosecutors are reluctant to accept their referrals.132<\/a><\/sup>Robert L. Rabin, Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion<\/em>, 24 STAN. L. REV. 1036, 1063 (1972).<\/span> If the Justice Department does<\/em> accept a referral, agency investigators may assist with the prosecution and \u201cwill generally be responsible for the evidentiary aspects\u201d of the case.133<\/a><\/sup>Id. <\/em>at 1068 (\u201cThe investigator who worked on the case will generally be responsible for the evidentiary aspects of preparation for litigation . . . .\u201d). See generally <\/em>Asimow, supra <\/em>note 20, at 247 (explaining how agency staff prosecutors prepare confidential memoranda analyzing the factual, legal, and policy rationales for charging or settling a case, including evidentiary weaknesses and strategic considerations).<\/span><\/p>\n

When an agency refers a case to the Justice Department, it will sometimes send the criminal referral to \u201cMain Justice\u201d in Washington, D.C. At Main Justice, some units specialize in certain types of regulatory crimes: for example, Main Justice\u2019s Tax Division will often handle referrals from the Internal Revenue Service,134<\/a><\/sup>See, e.g.<\/em>, How Criminal Investigations Are Initiated<\/em>, INTERNAL REVENUE SERV. (May 17, 2025), https:\/\/www.irs.gov\/compliance\/criminal-investigation\/how-criminal-investigations-are-initiated [https:\/\/perma.cc\/WZ36-KRT2] (noting that the Internal Revenue Service\u2019s Criminal Investigation Division \u201cconducts criminal investigations\u201d and then makes a prosecution recommendation to the Tax Division in Main Justice for tax investigations or to a U.S. Attorney\u2019s office for all other investigations).<\/span> and Main Justice\u2019s Environmental Crimes Section will often work with the Environmental Protection Agency.135<\/a><\/sup>See Environmental Crimes Section: About the Section<\/em>, U.S. DEP\u2019T OF JUST., https:\/\/www.justice.gov\/enrd\/environmental-crimes-section [https:\/\/perma.cc\/2BB6-LJ8M] (describing the Environmental Crimes Section and its work with the EPA, the Fish and Wildlife Service, and other partner agencies); see also <\/em>U.S. Dep\u2019t of Just., Just. Manual \u00a7 5-11.104 (2018) [hereinafter JM], https:\/\/www.justice.gov\/jm\/jm-5-11000-environmental-crimes#5-11.104 [https:\/\/perma.cc\/FM4J-S2Y3] (\u201cUnited States Attorneys\u2019 Offices have responsibility for the investigation and prosecution of environmental crimes within their own districts and the Environmental Crimes Section has responsibility for the investigation and prosecution of environmental crimes on a nationwide basis.\u201d).<\/span> But agencies need not always work with Main Justice in D.C., because agencies may also refer cases to local U.S. Attorneys\u2019 Offices throughout the country. The Securities and Exchange Commission, for example, often works with federal prosecutors in the Southern District of New York.136<\/a><\/sup>See,<\/em> e.g.<\/em>, Criminal Division<\/em>, U.S. DEP\u2019T OF JUST., https:\/\/www.justice.gov\/usao-sdny\/criminal-division [https:\/\/perma.cc\/XQ67-G6CZ].<\/span> The Environmental Protection Agency, too, can refer cases to local U.S. Attorneys\u2019 Offices, and these local U.S. Attorneys\u2019 Offices can sometimes file charges without seeking approval from Main Justice.137<\/a><\/sup>See <\/em>Uhlmann, Environmental Crime<\/em>, supra <\/em>note 130, at 172 (\u201cBy 1994, United States Attorneys\u2019 Offices were no longer required to seek approval from officials in Washington before bringing criminal charges in environmental cases.\u201d).<\/span><\/p>\n

b. Criminal Prosecutions by the Justice Department<\/em><\/h6>\n

The Justice Department\u2019s control over criminal litigation derives from the Judiciary Act of 1789, which authorized federal prosecutors to represent the United States in civil and criminal litigation.138<\/a><\/sup>See <\/em>Judiciary Act of 1789, ch. 20, 1 Stat. 73 \u00a7 35 (1789).<\/span> Over time, civil litigation authority was split between different agencies: for example, the Securities and Exchange Commission was created in 1934 and was granted its own civil litigation authority independent of the Justice Department.139<\/a><\/sup>The Securities and Exchange Commission was given civil litigating authority by Congress in the Securities Exchange Act of 1934, which created the agency. See <\/em>15 U.S.C. \u00a7\u00a7 78a\u201378rr; see also <\/em>15 U.S.C. \u00a7 78u(d)(3)(A) (\u201cWhenever it shall appear to the Commission that any person has violated any provision of this chapter . . . the Commission may bring an action in a United States district court to seek . . . a civil penalty . . . .\u201d).<\/span> Yet even though some agencies acquired civil <\/em>litigating authority, criminal <\/em>authority remained firmly ensconced within the Justice Department.140<\/a><\/sup>In the lead-up to the Administrative Procedure Act in 1946, numerous agencies testified before Congress to describe their enforcement practices, which included criminal referrals to the Justice Department. See generally<\/em> ATT\u2019Y GEN.\u2019S COMM. ON ADMIN. PROC., ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 77-8 (1941). Multiple agencies described a system of \u201ccriminal referrals,\u201d whereby serious regulatory violations were referred to the Justice Department for criminal enforcement. For example, in the Internal Revenue Service, \u201c[i]f criminal prosecution is finally decided upon by the Bureau, the case is transmitted to the Department of Justice.\u201d ATT\u2019Y GEN.\u2019S COMM. ON ADMIN. PROC., ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES PT. 9, S. DOC. NO. 77-10, at 17 (1941). In the Maritime Commission, criminal cases were \u201creferred to the Department of Justice\u201d for criminal prosecutions. S. DOC. NO. 77-8, at 294. And in the Securities and Exchange Commission, the agency \u201cdoes not . . . conduct criminal prosecutions, but is expected to transmit evidence of crime to the Attorney General.\u201d Hearings Before a Subcomm. of the S. Comm. on the Judiciary on S. 674, S. 675, and S. 918<\/em>, 77th Cong. 394 n.12 (1941).<\/span> According to Kirti Datla and Richard Revesz:<\/p>\n

The default rule is that the Attorney General is to direct all litigation to which the United States is a party \u2018[e]xcept as otherwise authorized by law.\u2019 Congress has carved out numerous exceptions to the centralized control of litigation in the DOJ. These exceptions\u2014all related to civil, not criminal, litigation<\/em>\u2014’have been anything but systematic.\u2019141<\/a><\/sup>Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies)<\/em>, 98 CORNELL L. REV. 769, 800\u201301 (2013) (alteration in original) (emphasis added) (footnotes omitted).<\/span><\/p>\n

In the centralized system described by Datla and Revesz, some agencies can pursue civil<\/em> litigation in federal court, but all agencies must refer cases to the Justice Department for federal criminal<\/em> prosecution.142<\/a><\/sup>Id. <\/em>at 801.<\/span> Agencies are thus \u201cdependent\u201d upon the Justice Department for criminal prosecutions,143<\/a><\/sup>Rabin, supra <\/em>note 132, at 1037.<\/span> and Justice Department prosecutors are the \u201cexclusive gatekeepers\u201d for federal criminal enforcement.144<\/a><\/sup>Richman, supra <\/em>note 7, at 758.<\/span><\/p>\n

The president can amplify uptake of criminal referrals in given policy areas because he can direct the Justice Department to prioritize certain types of referrals. During the Family Separation Policy, for example, the Trump administration directed the Justice Department to accept referrals from immigration agencies.145<\/a><\/sup>See <\/em>Family Separation Memorandum, supra <\/em>note 1 (\u201cAccordingly, I direct each United States Attorney\u2019s Office along the Southwest Border . . . to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a) [for illegal entry].\u201d).<\/span> During President Biden\u2019s term, prosecutors were instructed to prioritize corporate and white-collar crime.146<\/a><\/sup>See infra <\/em>note 219.<\/span><\/p>\n

B. Criminal Enforcement as Used by Recent Presidents<\/em><\/h5>\n

Many recent presidents have used criminal enforcement, including Presidents Trump, Biden, Obama, and Bush. However, President Trump\u2019s policies have been unusually binding<\/em> upon prosecutors, who have traditionally exercised a large degree of independence from the White House. This section provides five in-depth case studies of criminal enforcement as used by recent presidents.<\/p>\n

1. New Mexico Military Zone (Trump Administration)<\/em><\/h6>\n

As part of its effort to reduce immigration, the Trump administration created new military zones in border states like New Mexico.147<\/a><\/sup>See <\/em>Morgan Lee, US Expands Militarized Zones to 1\/3 of Southern Border, Stirring Controversy<\/em>, A.P. NEWS (July 3, 2025), https:\/\/apnews.com\/article\/border-military-trump-national-defense-area-89f046e09809fe5b5071c6b9e1f48da9 [https:\/\/perma.cc\/HD5J-NCYG].<\/span> The military zones allowed the Army to \u201ctake a more direct role in securing our southern border,\u201d and they were announced by President Trump, who directed the Department of the Interior to transfer jurisdiction over public lands to the Department of Defense.148<\/a><\/sup>Memorandum on the Military Mission for Sealing the Southern Border of the United States and Repelling Invasions, 2025 DAILY COMP. PRES. DOC. 471 (Apr. 11, 2025) [hereinafter Memorandum for Military Zones].<\/span> President Trump noted that the transfer would allow the Army to patrol the newly created military zone and to \u201cexclude persons\u201d from entering the zones.149<\/a><\/sup>Id.<\/em><\/span> A few weeks later, in May 2025, Defense Secretary Pete Hegseth and the U.S. Attorney for the District of New Mexico announced that they would \u201cwork hand in glove\u201d to criminally prosecute immigrants.150<\/a><\/sup>Press Release, U.S. Att\u2019y\u2019s Off., Dist. of N.M., U.S. Attorney Announces Prosecution of Title 50 Charges Following Joint Visit to New Mexico National Defense Area (May 1, 2025), https:\/\/www.justice.gov\/usao-nm\/pr\/us-attorney-announces-prosecution-title-50-charges-following-joint-visit-new-mexico [https:\/\/perma.cc\/YSZ5-ZHR6]; see also <\/em>C. Todd Lopez, Interagency Land Agreement Strengthens Military Border Mission<\/em>, DOD NEWS (Apr. 16, 2025), https:\/\/www.war.gov\/News\/News-Stories\/Article\/article\/4156956\/interagency-land-agreement-strengthens-military-border-mission\/ [https:\/\/perma.cc\/4XK9-M5TW].<\/span><\/p>\n

The military zones allowed prosecutors to bring more severe national security-related charges against immigrants. In previous administrations, immigrants might have faced deportation (a civil penalty)151<\/a><\/sup>Deportation, also called removal, is considered a civil, not criminal, penalty. See<\/em> Fong Yue Ting v. United States, 149 U.S. 698, 713\u201314 (1893).<\/span> or charges of entry without inspection (carrying a criminal penalty of up to six months of imprisonment).152<\/a><\/sup>8 U.S.C. \u00a7 1325.<\/span> Under the Trump administration\u2019s new policy, immigrants were charged under multiple criminal statutes, including national security-related statutes.153<\/a><\/sup>See,<\/em> e.g.<\/em>, United States v. Lopez-Gonzalez, 782 F. Supp. 3d 1062, 1066 (D.N.M. 2025).<\/span> These national security-related charges were often more severe, especially if the charges were stacked together: for example, immigrants were charged under 50 U.S.C. \u00a7 797 for violating a national security regulation (punishable by imprisonment up to one year), plus 18 U.S.C. \u00a7 1382 for entering military property (punishable by imprisonment up to six months), plus 8 U.S.C. \u00a7 1325 for entry without inspection (punishable by imprisonment up to six months).154<\/a><\/sup>See<\/em> id. <\/em>(discussing the three charges).<\/span><\/p>\n

By May 2025, prosecutors were bringing stacked criminal charges against immigrants detained in the New Mexico military zone.155<\/a><\/sup>See id. <\/em><\/span> Federal prosecutors filed hundreds of nearly identical charges, using a \u201ccut-and-paste approach\u201d that repeated the same generic allegations.156<\/a><\/sup>See id. <\/em>at 1067 n.2.<\/span> Public defenders contested the national security-related charges, arguing that they were unwarranted because immigrants did not even know they were entering a military zone.157<\/a><\/sup>See id. <\/em>at 1068.<\/span> Indeed, many local residents and local officials seemed confused about the boundaries of the New Mexico military zone, which contained large swaths of private land (such as a church-owned pilgrimage site)158<\/a><\/sup>See <\/em>Patrick Lohmann, Confusion Reigns in New Mexico\u2019s Militarized Border Zone<\/em>, SOURCE N.M. (May 30, 2025), https:\/\/sourcenm.com\/2025\/05\/30\/confusion-reigns-in-new-mexicos-militarized-border-zone\/ [https:\/\/perma.cc\/ZT9M-ERXY].<\/span> and land frequently used by ranchers for livestock grazing.159<\/a><\/sup>See id.<\/em> (\u201cIn the last two weeks, Army and Border Patrol officials have collected the names, photographs, phone numbers, license plates and other details of ranchers who enter the [National Defense Area] to round up their livestock or check on water tanks, ranchers told Source New Mexico. The collection is an effort, they said, to make sure the Army does not mistake ranchers, who often carry firearms, for those who might be trespassing on a military base.\u201d). <\/span> In some instances, the U.S. Attorney\u2019s Office erroneously charged immigrants who had not, in fact, been found within the boundaries of the military zone.160<\/a><\/sup>See id.<\/em><\/span><\/p>\n

In May 2025, Magistrate Judge Gregory Wormuth dismissed the national security-related charges in dozens of cases.161<\/a><\/sup>Morgan Lee, Judges Dismiss National Security Charges Against Immigrants Who Enter New Militarized Zone at Border<\/em>, A.P. NEWS (May 16, 2025), https:\/\/apnews.com\/article\/military-trespassing-cases-dismissed-6c4a83f4d1fd9674e5b49d4a23dc91be [https:\/\/perma.cc\/89AC-NXC6].<\/span> He held that prosecutors had failed to allege sufficient facts about mens rea.162<\/a><\/sup>See, e.g.<\/em>, Lopez-Gonzalez<\/em>, 782 F. Supp. 3d at 1067\u201368 (\u201cHaving concluded its probable cause review in this case, the court finds that the facts alleged in the complaint do not establish probable cause for either the 50 U.S.C. \u00a7 797 or 18 U.S.C. \u00a7 1382 charge.\u201d).<\/span> Prosecutors wrote that \u201csigns\u201d had been posted to alert passersby about the military zone, but the judge held that this generalized allegation was insufficient. Simply stating that \u201csome \u2018signs\u2019 were posted,\u201d he argued, \u201cprovides no basis on which to conclude that the Defendant could have seen, let alone did see, the signs.\u201d163<\/a><\/sup>Id.<\/em> at 1071.<\/span> In dismissing the criminal charges, Judge Wormuth drew upon a more robust and far-reaching conception of mens rea, which this Article will discuss in detail in Part V.<\/p>\n

2. Family Separation Policy (Trump Administration)<\/em><\/h6>\n

In April 2018, President Trump announced a crackdown against immigrant families at the border.164<\/a><\/sup>See <\/em>Ms. L. v. U.S. Immigr. & Customs Enf\u2019t, 415 F. Supp. 3d 980, 984 (S.D. Cal. 2020) (\u201c[T]he Trump Administration embarked on an unprecedented policy of separating migrant families at the border to deter immigration.\u201d); see also <\/em>Caitlin Dickerson, \u201cWe Need to Take Away Children\u201d: The Secret History of the U.S. Government\u2019s Family-Separation Policy<\/em>, THE ATLANTIC (Aug. 7, 2022), https:\/\/www.theatlantic.com\/magazine\/archive\/2022\/09\/trump-administration-family-separation-policy-immigration\/670604\/ [https:\/\/perma.cc\/PS8L-Z4AA] (documenting the Family Separation Policy and the involvement of high-level White House officials, including cabinet officials).<\/span> The crackdown began with an executive order from President Trump,165<\/a><\/sup>Exec. Order No. 16,179, 83 Fed. Reg. 16179 (Apr. 6, 2018).<\/span> which was quickly followed by a memorandum from Attorney General Jeff Sessions, who announced a \u201czero-tolerance\u201d policy for immigration cases referred to federal prosecutors.166<\/a><\/sup>Family Separation Memorandum, supra <\/em>note 1.<\/span> Another memorandum, from Secretary of Homeland Security Kirstjen Nielsen, directed immigration officials to criminally refer cases to the Justice Department, even though the criminal referrals would separate parents from children.167<\/a><\/sup>Secretary Nielsen\u2019s full memorandum has not been released, but a partial memorandum is available. See <\/em>Press Release, Project on Gov\u2019t Oversight, New Document Shows Nielsen Signed Off on Family Separation Policy (Sep. 25, 2018), https:\/\/www.pogo.org\/post\/new-documents-show-nielsen-signed-off-on-family-separation-policy [https:\/\/perma.cc\/Y6N6-T5WQ]; see also <\/em>Memorandum from Kevin McAleenan, Comm\u2019r., U.S. Customs and Border Prot., to Kirstjen Nielsen, Sec\u2019y, U.S. Dep\u2019t of Homeland Sec. (Apr. 23, 2018), https:\/\/www.documentcloud.org\/documents\/4936568-FOIA-9-23-Family-Separation-Memo.html [https:\/\/perma.cc\/9PCS-ZETY].<\/span> Both memoranda were published in April 2018, and shortly thereafter, President Trump\u2019s cabinet members approved the Family Separation Policy by a show-of-hands vote in the White House.168<\/a><\/sup>See <\/em>Julia Ainsley & Jacob Soboroff, Trump Cabinet Officials Voted in 2018 White House Meeting to Separate Migrant Children, Say Officials<\/em>, NBC NEWS (Aug. 20, 2020), https:\/\/www.nbcnews.com\/politics\/immigration\/trump-cabinet-officials-voted-2018-white-house-meeting-separate-migrant-n1237416 [https:\/\/perma.cc\/CKK8-23R2].<\/span><\/p>\n

The Family Separation Policy used criminal referrals to redirect the flow of immigration cases. Prior to the Family Separation Policy, immigrant families typically faced civil immigration proceedings.169<\/a><\/sup>See<\/em> OFF. OF THE INSPECTOR GEN., U.S. DEP\u2019T OF JUST., REVIEW OF THE DEPARTMENT OF JUSTICE\u2019S PLANNING AND IMPLEMENTATION OF ITS ZERO TOLERANCE POLICY AND ITS COORDINATION WITH THE DEPARTMENTS OF HOMELAND SECURITY AND HEALTH AND HUMAN SERVICES 6 (2021) [hereinafter INSPECTOR GEN. REPORT].<\/span> While more serious cases sometimes had been referred to the Justice Department (for example, immigration cases that involved human trafficking or sex offenders), many routine immigration cases were resolved without a criminal referral, in part due to concerns about family separation.170<\/a><\/sup>Id. <\/em>at 4.<\/span><\/p>\n

After the Family Separation Policy, however, immigration cases began flowing toward the Justice Department\u2014specifically, toward U.S. Attorneys\u2019 Offices along the Southwest border. Attorney General Jeff Sessions instructed these U.S. Attorneys to exercise \u201czero-tolerance\u201d in immigration cases, even if the cases involved parents with children.171<\/a><\/sup>Family Separation Memorandum, supra <\/em>note 1; see also<\/em> INSPECTOR GEN. REPORT, supra <\/em>note 169, at 1 (\u201c[W]ith the urging of Sessions, DHS changed its policy of not referring family unit adults and began referring them to Southwest border USAOs for criminal prosecution.\u201d).<\/span> By law, children can be held in immigration detention but not in criminal detention,172<\/a><\/sup>See<\/em> INSPECTOR GEN. REPORT, supra <\/em>note 169, at 5\u20136 (describing the Flores <\/em>settlement agreement, which allows the government to hold children in immigration detention \u201cin the least restrictive setting appropriate to their age and needs\u201d).<\/span> so children were placed in the custody of the Department of Health and Human Services while their parents served criminal sentences.173<\/a><\/sup>See id.<\/em><\/span> Immigration officials failed to create a system that would allow them to reunify families after the parents\u2019 criminal trials,174<\/a><\/sup>See <\/em>Jacob Soboroff, Emails Show Trump Admin Had \u201cNo Way to Link\u201d Separated Migrant Children to Parents<\/em>, NBC NEWS (May 1, 2019, at 19:30 ET), https:\/\/www.nbcnews.com\/politics\/immigration\/emails-show-trump-admin-had-no-way-link-separated-migrant-n1000746 [https:\/\/perma.cc\/SL55-2QUG].<\/span> and in some instances, officials worked to prevent<\/em> family reunifications.175<\/a><\/sup>See <\/em>Dickerson, supra <\/em>note 164 (citing emails from immigration official Matt Albence).<\/span> One immigration official wrote that reunification \u201cobviously undermines the entire effort\u201d and that \u201cthe expectation is that we are NOT to reunite the families.\u201d176<\/a><\/sup>Id<\/em>.<\/span> An estimated 3,000 children were separated from their parents.177<\/a><\/sup>INSPECTOR GEN. REPORT, supra <\/em>note 169, at 2.<\/span><\/p>\n

The Family Separation Policy was unusually binding upon federal prosecutors. Traditionally, U.S. Attorneys\u2019 Offices have exercised a large degree of independence from Justice Department officials headquartered in Washington, D.C.178<\/a><\/sup>See,<\/em> e.g.<\/em>, Richman, supra <\/em>note 7, at 798\u201399 (discussing the \u201cindependent judgment\u201d of U.S. Attorneys, and noting that \u201cMain Justice\u201d officials in D.C. have tended to \u201cdevolve power\u201d to U.S. Attorneys).<\/span> Yet Attorney General Sessions overrode the traditional independence of U.S. Attorneys\u2019 Offices,179<\/a><\/sup>See <\/em>INSPECTOR GEN. REPORT, supra <\/em>note 169, at 39 (describing a May 11, 2018, conference call between Attorney General Sessions and five U.S. Attorneys who raised concerns about the family separations).<\/span> and he publicly claimed that his zero-tolerance policy should apply to \u201c100 percent\u201d of referrals.180<\/a><\/sup>See <\/em>Jeff Sessions, Att\u2019y Gen., U.S. Dep\u2019t of Just., Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 2018), https:\/\/www.justice.gov\/opa\/speech\/attorney-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions [https:\/\/perma.cc\/7KHX-YSMS].<\/span> Lower-level officials were allegedly pressured to comply.181<\/a><\/sup>See <\/em>Dickerson, supra <\/em>note 164 (\u201cInternal emails show that some assistant U.S. attorneys who resisted prosecuting parents under Zero Tolerance faced reassignment . . . .\u201d).<\/span><\/p>\n

Was the Family Separation Policy truly binding upon prosecutors? Some prosecutors appear to have treated it as binding. The U.S. Attorney for the Western District of Texas, who was interviewed by the Justice Department\u2019s Office of the Inspector General, stated:<\/p>\n

Zero tolerance, per our instructions, it\u2019s basically sapping prosecutorial discretion . . . . [I] still can determine whether it\u2019s a readily provable offense . . . . But even with respect to age of the child, it was a categorical, \u2018We\u2019re prosecuting all.\u2019 . . . [N]o one in this office, including me, had any discretion on whether to accept if we were under the zero tolerance requirement from the Attorney General.182<\/a><\/sup>INSPECTOR GEN. REPORT, supra <\/em>note 169, at 41.<\/span><\/p>\n

Other AUSAs treated the policy as partially binding, attempting to \u201crefine[]\u201d the policy to find a middle ground.183<\/a><\/sup>Id.<\/em> at 16.<\/span> For example, some AUSAs \u201cdeclined cases with very young children, [one] through six year olds,\u201d but applied the Family Separation Policy to children older than six.184<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Finally, some AUSAs resisted the Family Separation Policy, arguing that it was inhumane or that it diverted resources from more serious crimes. An AUSA in the Southern District of Texas, for example, warned higher-up officials that the family separation cases had \u201caffected [the office\u2019s] ability to prosecute other substantive crimes.\u201d185<\/a><\/sup>Id. <\/em>at 67.<\/span> In some instances, prosecutors were forced to deprioritize cases with sex offenders who were then released without criminal prosecution.186<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Yet the fact remained that despite pushback from some U.S. Attorneys, the Family Separation Policy was unusually binding upon prosecutors. This binding nature stood in stark contrast to earlier examples of criminal enforcement, discussed below.<\/p>\n

3. Workplace Safety Memorandum (Obama Administration)<\/em><\/h6>\n

In other instances, the president has adopted less-binding policies that preserved decision-making power for prosecutors. Consider, for example, President Obama\u2019s Workplace Safety Memorandum from 2015.187<\/a><\/sup>Workplace Safety Memorandum, supra <\/em>note 3. <\/span> The Workplace Safety Memorandum was part of President Obama\u2019s larger workers\u2019 rights agenda,188<\/a><\/sup>For example, President Obama also sought to increase overtime pay for workers. See <\/em>Memorandum on Updating and Modernizing Overtime Regulations, 2014 DAILY COMP. PRES. DOC. 138 (Mar. 13, 2014).<\/span> and it encouraged criminal prosecutions for serious workplace violations\u2014for example, an employer might face criminal charges if his \u201cwillful\u201d violation caused an employee\u2019s death.189<\/a><\/sup>See<\/em> Workplace Safety Memorandum, supra <\/em>note 3, (describing criminal sanctions in the Occupational Safety and Health Act, including sanctions for \u201cwillfully violating a specific standard, and thus causing the death of an employee\u201d); see also<\/em> 29 U.S.C. \u00a7 666(e) (describing criminal penalties including a criminal fine \u201cof not more than $10,000\u201d or imprisonment \u201cfor not more than six months\u201d for a willful violation of the Occupational Safety and Health Act causing death to employee).<\/span> President Obama\u2019s efforts were prompted, in part, by several high-profile workplace disasters, including a deadly mining explosion and an oil spill.190<\/a><\/sup>See <\/em>Andrias, supra <\/em>note 12, at 1065 (describing President Obama\u2019s workplace efforts after a \u201cseries of crises,\u201d including the Deepwater Horizon oil spill and an explosion in the Massey Energy Upper Big Branch Mine). <\/span><\/p>\n

The Workplace Safety Memorandum encouraged criminal referrals from the Department of Labor to the Justice Department.191<\/a><\/sup>See<\/em> Workplace Safety Memorandum, supra <\/em>note 3, at 3 (describing \u201cprinciples of coordination and cooperation\u201d between the Justice Department and the Department of Labor). <\/span> The memorandum listed the specific \u201cpoints of contact\u201d at each agency who would handle referrals,192<\/a><\/sup>Id.<\/em> <\/span> implemented training programs for agency staff,193<\/a><\/sup>Id. <\/em>at 4.<\/span> and emphasized data-sharing between the two agencies.194<\/a><\/sup>Id.<\/em><\/span> Per the memorandum, the purpose of the agreement was to \u201caid both agencies in more effectively implementing our national workplace statutes.\u201d195<\/a><\/sup>Id. <\/em>at 1.<\/span><\/p>\n

Nevertheless, the Workplace Safety Memorandum held back from binding or quasi-binding language. The memorandum avoided mandatory language and, in fact, expressly stated that it was nonbinding.196<\/a><\/sup>The Workplace Safety Memorandum expressly stated that \u201cNothing in this MOU commits DOJ to investigate or prosecute any particular worker-safety incident.\u201d Id. <\/em>at 5. This disclaimer might also have been prompted by Heckler<\/em>-like concerns about workplace advocacy groups that might try to compel agency enforcement. See <\/em>Heckler v. Chaney, 470 U.S. 821, 831\u201333 (1985) (holding that agency nonenforcement is presumptively committed to the agency\u2019s discretion).<\/span> The nonbinding approach in the Workplace Safety Memorandum stands in sharp contrast to the language surrounding the Family Separation Policy, which stressed \u201czero-tolerance\u201d and placed significant pressure on prosecutors.197<\/a><\/sup>See <\/em>Family Separation Memorandum, supra <\/em>note 1; see also supra <\/em>notes 179\u201386 (discussing pressure placed on federal prosecutors who objected to the Family Separation Policy). <\/span><\/p>\n

As the Workplace Safety Memorandum illustrates, the president has a range of options for administering criminal enforcement: he can craft policies that are binding or quasi-binding upon prosecutors, or he can create less-binding policies that encourage criminal referrals without expressly binding lower-level officials.<\/p>\n

4. Mandatory Minimum Sentences (Obama Administration)<\/em><\/h6>\n

President Obama also used criminal enforcement as a tool for leniency, not severity, by directing prosecutors to reduce their use of mandatory minimum sentences. As part of his larger reform agenda, President Obama highlighted racial disparities in policing198<\/a><\/sup>See,<\/em> e.g.<\/em>, David Hudson, President Obama: \u201cOur Criminal Justice System Isn\u2019t as Smart as It Should Be<\/em>,\u201d <\/em>WHITE HOUSE BLOG (July 15, 2015), https:\/\/obamawhitehouse.archives.gov\/blog\/2015\/07\/15\/president-obama-our-criminal-justice-system-isnt-smart-it-should-be [https:\/\/perma.cc\/SQH3-8KMX] (\u201cA growing body of research shows that people of color are more likely to be stopped, frisked, questioned, charged, detained.\u201d).<\/span> and proposed the \u201cSmart on Crime\u201d program, which aimed to reduce mandatory minimum sentences for nonviolent drug offenses.199<\/a><\/sup>See <\/em>U.S. DEP\u2019T OF JUST., SMART ON CRIME: REFORMING THE CRIMINAL JUSTICE SYSTEM FOR THE 21ST CENTURY (2013), https:\/\/www.justice.gov\/sites\/default\/files\/ag\/legacy\/2013\/08\/12\/smart-on-crime.pdf [https:\/\/perma.cc\/Y2RG-8QBA] (\u201c[T]he Attorney General is announcing a change in Department of Justice charging policies so that certain people who have committed low-level, nonviolent drug offenses, who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.\u201d).<\/span> According to President Obama, his policy sought to \u201c[g]ive judges some discretion around nonviolent crimes\u201d so that judges could \u201csteer a young person who has made a mistake in a better direction.\u201d200<\/a><\/sup>Hudson, supra <\/em>note 198 (quoting President Obama\u2019s speech to the NAACP).<\/span><\/p>\n

President Obama\u2019s policy was announced by Attorney General Eric Holder, who issued a memorandum that directed prosecutors to decline to bring charges that triggered mandatory minimum sentences for certain nonviolent drug offenses.201<\/a><\/sup>See<\/em> Memorandum from Eric Holder, Jr., Att\u2019y Gen., U.S. Dep\u2019t of Just., to the U.S. Att\u2019ys and Assistant Att\u2019y Gen. for the Crim. Div. (Aug. 12, 2013) [hereinafter Holder memorandum], https:\/\/www.justice.gov\/sites\/default\/files\/oip\/legacy\/2014\/07\/23\/ag-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certain-drugcases.pdf [https:\/\/perma.cc\/U9VF-ZFCE].<\/span> The Holder memorandum laid out four criteria, such as lack of significant criminal history and lack of significant ties to large-scale drug trafficking organizations, and directed prosecutors to avoid mandatory minimum sentences for defendants who met the four criteria.202<\/a><\/sup>See id. <\/em>at 2 (describing the four criteria).<\/span> The memorandum also urged prosecutors to reduce their use of 21 U.S.C. \u00a7 851 sentencing enhancements, which imposed longer sentences on offenders with prior convictions.203<\/a><\/sup>See<\/em> 21 U.S.C. \u00a7 851.<\/span><\/p>\n

The Holder memorandum represented a push toward leniency <\/em>in criminal enforcement, rather than a push toward severity<\/em>. While the empirical effects of the Holder memorandum are disputed, most scholars agree that the overall messaging of the Justice Department shifted toward leniency.204<\/a><\/sup>See New Smart on Crime Data Reveals Federal Prosecutors Are Focused on More Significant Drug Cases and Fewer Mandatory Minimums for Drug Defendants<\/em>, U.S. DEP\u2019T OF JUST. (Mar. 21, 2016), https:\/\/www.justice.gov\/opa\/pr\/new-smart-crime-data-reveals-federal-prosecutors-are-focused-more-significant-drug-cases-and [https:\/\/perma.cc\/BA5N-N8TB] (reporting that the Holder memorandum \u201cis showing impressive results\u201d). But see <\/em>Jacob Sullum, How Many Drug Offenders Benefited from the Holder Memo That Sessions Rescinded?<\/em>, REASON MAG. (May 17, 2017), https:\/\/reason.com\/2017\/05\/17\/how-many-drug-offenders-benefited-from-t\/ [https:\/\/perma.cc\/C9YW-FMMQ] (arguing that \u201cthe impact\u201d of the Holder memorandum was \u201cnot as big as the DOJ implied\u201d). <\/span> As one professor put it:<\/p>\n

The tone\/attitude of DOJ ultimately matters even more than the particulars of the [Holder] memo . . . . Things got a lot more lenient during Obama\u2019s second term in part because a signal was coming from everyone that federal prosecutors should be a lot more lenient, and the Holder memo was the most essential piece of this story for prosecutors.205<\/a><\/sup>Sullum, supra <\/em>note 204 (interviewing Douglas Berman, at Ohio State\u2019s Moritz College of Law, about the impact of the Holder memorandum).<\/span><\/p>\n

President Obama\u2019s efforts show that presidentially directed criminal enforcement need not always tilt toward severity. Instead, the president can use his influence to push prosecutors towards leniency.<\/p>\n

5.<\/em> Gonzales v. Oregon (Bush Administration)<\/em><\/h6>\n

President Bush used a different variation on presidential administration when his administration challenged physician-assisted suicide in Gonzales v. Oregon<\/em>.206<\/a><\/sup>See<\/em> 546 U.S. 243, 274\u201375 (2006) (refusing to uphold Attorney General\u2019s interpretation).<\/span> The memorandum at issue in Gonzales <\/em>combined enforcement <\/em>and interpretation <\/em>of the criminal law, because it reinterpreted existing regulations in order to expand civil and criminal liability for Oregon doctors.207<\/a><\/sup>The Gonzales <\/em>memorandum instructed agencies to intensify enforcement, while also reinterpreting existing regulations. Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. 56607 (Nov. 9, 2001) [hereinafter Gonzales<\/em> memorandum].<\/span> If upheld, the Gonzales <\/em>memorandum would have given the Bush administration the \u201cpower to criminalize\u201d physician-assisted suicide in Oregon.208<\/a><\/sup>See Gonzales<\/em>, 546 U.S. at 262 (\u201cThis power to criminalize . . . would be unrestrained.\u201d).<\/span><\/p>\n

The Gonzales <\/em>memorandum directed the Drug Enforcement Administration (\u201cDEA\u201d) to intensify enforcement against Oregon doctors.209<\/a><\/sup>See<\/em> Gonzales<\/em> memorandum, supra<\/em> note 207.<\/span> According to the Gonzales<\/em> memorandum, \u201cassisting suicide\u201d was not a \u201c\u2018legitimate medical purpose\u2019\u201d under existing regulations for medical drug dispensing.210<\/a><\/sup>Id<\/em>. (\u201cI hereby determine that assisting suicide is not a \u2018legitimate medical purpose\u2019 within the meaning of 21 C.F.R. \u00a7 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the [Controlled Substances Act].\u201d).<\/span> Under this interpretation, physicians who complied with the Oregon Death with Dignity Act could lose their federal medical registrations (a civil penalty) and face up to twenty years of imprisonment (a criminal penalty).211<\/a><\/sup>See <\/em>Controlled Substances Act, 21 U.S.C. \u00a7 841 (imposing criminal penalties, including twenty years of imprisonment, for violations of the Controlled Substances Act); see also Gonzales<\/em>, 546 U.S. at 261 (noting that violation of the Controlled Substances Act is a \u201ccriminal offense, and often a felony\u201d).<\/span> The Gonzales<\/em> memorandum also explained how Drug Enforcement Agency staff could obtain the dispensing records of Oregon doctors.212<\/a><\/sup>See Gonzales<\/em> memorandum, supra <\/em>note 207 (noting that \u201cthe State of Oregon\u2019s Health Division must require any health care provider upon dispensing medication pursuant to the Death with Dignity Act to file a copy of the dispensing record with the Division\u201d).<\/span><\/p>\n

After several years of litigation, the Supreme Court enjoined the enforcement of the Gonzales <\/em>memorandum in a 6\u20133 opinion that cited a welter of different arguments. The Court argued that the Gonzales <\/em>memorandum violated the statute\u2019s power-sharing scheme,213<\/a><\/sup>See Gonzales<\/em>, 546 U.S. at 265 (\u201cThe Attorney General does not have the sole delegated authority under the [Controlled Substances Act]. He must instead share it with, and in some respects defer to, the Secretary [of Health and Human Services], whose functions are likewise delineated and confined by the statute.\u201d).<\/span> and it also cited an \u201cantiparroting\u201d canon criticized by Justice Scalia in his dissent.214<\/a><\/sup>Id<\/em>. at 278 (Scalia, J., dissenting) (\u201cEven if there were an antiparroting canon, however, it would have no application here.\u201d).<\/span> In another part of its opinion, the Court critiqued the Bush administration\u2019s attempts to create a new crime. According to the Court, the Gonzales<\/em> memorandum \u201cpurports to declare that . . . physician-assisted suicide is a crime.\u201d215<\/a><\/sup>Id<\/em>. at 261 (majority opinion).<\/span> If upheld, the Gonzales<\/em> memorandum would have given the Attorney General a \u201cpower to criminalize\u201d that was \u201cunrestrained\u201d by statutory limits.216<\/a><\/sup>Id<\/em>. at 262 (\u201cIf the Attorney General\u2019s argument were correct, his power to deregister necessarily would include the greater power to criminalize . . . . This power to criminalize\u2014unlike his power over registration, which must be exercised only after considering five express statutory factors\u2014would be unrestrained.\u201d).<\/span><\/p>\n

Even though it was ultimately enjoined by the Court, the Gonzales <\/em>memorandum revealed a powerful variant on presidential administration. By reinterpreting existing statutes, the Gonzales <\/em>memorandum expanded criminal liability (in effect, allowing the president to create a new crime) while simultaneously intensifying enforcement. The Gonzales <\/em>memorandum thus illustrates the potential breadth of the president\u2019s criminal enforcement powers.<\/p>\n

* * *<\/p>\n

Part III provided five in-depth examples of criminal enforcement used as a tool for presidential administration. In addition, some brief examples are listed below:<\/p>\n