Volume 90, Number 3

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs can make local policing seem cheaper for communities, but actually make it more costly in its impacts and therefore less efficient.

The coercion costs of policing are overlooked in most assessments of policing policy, not just in federal programs. Ordinarily, however, even when they are not formally recognized, those costs are accounted for, at least to some degree, in local political processes because local government officials experience public ire when the harms of policing become too great. Unfortunately, federal programs also frequently undermine this check on the intrusiveness of local policing. Internalizing the nonbudgetary costs of policing depends on public capacity to monitor harmful police conduct and on city officials’ capacity to influence police conduct. Some federal programs interfere with these conditions by clouding responsibility for law enforcement coercion and by giving money directly to departments rather than to municipalities. Thus, federal programs not only ignore significant costs of the policies they subsidize, they also interfere with the usual local mechanisms for man- aging those costs. Until federal public safety programs are approached with a more complete understanding of policing—one that attends to its full costs and the need for accountability—federal programs will continue to promote policing practices that do more harm than necessary and maybe even more harm than good.

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while centralized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been largely overlooked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administration or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mechanism of control in the criminal sphere. Whatever the merits of other unitary executive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.

Madison Lecture

This Lecture examines judicial independence, judicial accountability, and judicial governance. I discuss the role the current system of judicial self-governance plays in ensuring both accountability and independence—two sides of the same coin. Yet, two recent legislative proposals threaten not only decisional independence but also the institutional independence of the judicial branch itself. The first calls for an inspector general for the federal judiciary and the second proposes to regulate Supreme Court recusals. This Lecture discusses how the inspector general and Supreme Court recusal bills would lead to significant changes in the way the judiciary functions, and concludes these changes would nonetheless be insignificant compared to the threat they pose to the decisional independence of the federal judiciary.

Congress enacted the critical habitat provisions of the Endangered Species Act (ESA) to provide a powerful tool for promoting the recovery of endangered and threatened species of plants and animals. However, agency recalcitrance and constant litigation have mired its efficacy, resulting in a tangled mess that fails to effectuate the recovery goal of the ESA. This Note disentangles that mess through the lens of the ongoing circuit split over the proper methodology for consideration of costs during critical habitat designation. Concluding that the Services’ favored method, the baseline method, is superior in its faithfulness to the statutory language and the intent of Congress, this Note warns that the baseline method’s legality will continue to be undermined until the Services promulgate proper regulatory definitions to support its internal logic.