Rachel E. Barkow ·
84 Geo. Wash. L. Rev. 1129 ·
A big part of what agencies do—indeed, the core of their executive power—is law enforcement. Whether it is a statute or an agency regulation, agencies make sure that individuals and entities comply with the law. In the case of some agencies, such as prosecutors’ offices or police departments, all they do is law enforcement; they do not possess rulemaking or judicial powers. Even for agencies that possess an array of powers, including rulemaking, enforcement is typically a core part of successfully achieving their statutory mission. Agency authorizing statutes typically give the agency broad discretion to set enforcement policies and prioritize the cases they will target.
As a matter of administrative law doctrine, however, enforcement discretion plays a lesser role. To be sure, when agencies bring enforcement actions against a party, courts will review the agency to verify the agency is complying with the law and not exceeding its authority. But enforcement discretion is far broader than a decision to move ahead against a party.
Most aspects of agency enforcement policy generally escape judicial review. A decision not to enforce is presumptively unreviewable, as is an agency’s decision not to monitor those it is charged with regulating. Courts tend to steer clear of second-guessing an agency’s selection of which actors to target and which to ignore. The judiciary takes a similarly hands-off approach to an agency’s broader plans for how it will proceed with enforcement, changes in its nonbinding enforcement policies, or how it will allocate funds from a lump-sum appropriation for enforcement needs.
One might think that because these critical enforcement policy calls do not face judicial review, other oversight mechanisms should take on greater importance. But all too often, enforcement oversight outside the courts gets insufficient attention as well. This Foreword to the Annual Review of Administrative Law in The George Washington Law Review shines a spotlight on enforcement discretion as a standalone problem of agency oversight and begins to catalog approaches for overseeing it.
Read the Full Foreword Here.
