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Prosecutorial Discretion, Part Two: Its Limits

By Jonathan Keim | September 29th, 2014

Put generally, prosecutorial discretion is the power not to act to enforce the law. InPart One of this series, I focused on the debated nature and origins of prosecutorial discretion. My goal in Part Two is to outline some recent conservative legal thinking about prosecutorial discretion. In Part Three, I will apply these principles to some contemporary issues (like the immigration debate) and provide some reflections on the state of the law.

Is prosecutorial discretion “absolute,” in the words of a bit of dicta from United States v. Nixon (1974)? As we will see, the constitutional limits of discretion in nonenforcement are set by the Take Care Clause, the nondelegation doctrine, and prohibitions on selective prosecutions. In addition, Congress has the ability to limit discretion through statutes that constrain the executive’s decision not to act.

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