November 24, 2014

JOSH BLACKMAN: The Constitutional Limits Of Prosecutorial Discretion. Also, Prosecutorial Discretion With Rubber Stamps.

Josh’s discussion also reminds me of MCI V. AT&T, 512 U.S. 218 (1994), in which the Supreme Court held that the FCC couldn’t stretch a statutory provision allowing it to “modify” tariff requirements into a general rule eliminating the need for most of the industry to file tariffs at all. That seems fairly analogous to what Obama is doing with immigration, and possibly a better fit than Heckler v. Chaney.

On the contra side, though, there’s the case I always bring up when people suggest that executive power has exploded in recent years, U.S. v. Spawr Optical. (Also discussed here.) Spawr is a Court of Appeals case, not a Supreme Court case, and turned on some particularly sweeping statutory delegations, but still. . . .

Meanwhile, some thoughts from Ilya Somin.

I also think that if the Supreme Court wants to hear this in a hurry, it can. If it takes it in the ordinary course of business, we’ll probably see a decision in June of 2016. Could Obama — already seen as passively aggressively undermining Hillary in other ways — have put a long-range torpedo into the water that will explode around the time of the Democratic Convention?

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