The Volokh Conspiracy

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DACA, ACA, FCPA

Prosecutorial discretion comes full circle.

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In June 2012, the Obama Administration announced the policy that became known as DACA. Several days later, Justice Scalia lambasted that policy while announcing his Arizona v. United States dissent. He charged that it "has come to pass and is with us today . . . a federal government that does not want to enforce the immigration laws as written." Over the next several years, President Obama routinely suspended enforcement of various mandates under the Affordable Care Act.

I often sounded a lonely note that these actions were unlawful, and set a dangerous precedent. Yet, the constant refrain was that the President had discretion, and these actions were within the law. I replied that this power of non-enforcement was far more dangerous in the hands of a conservative president. After all, progressives tend to like more law, while conservatives favor less law.

And so it has come to pass. President Trump signed an executive order pausing enforcement of prosecutions under the Foreign Corrupt Practices Act (FCPA):

For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:
(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;

To be clear, this is not a total suspension of the law. The Attorney General retains the discretion to make exceptions to the Presidents order. Though as a practical matter, I would be surprised if any new FCPA actions are initiated over the next six months.

What is the justification to halt enforcement of this law? Trump alludes to his Article II power over foreign affairs.

Purpose and Policy. Since its enactment in 1977, the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (FCPA) has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States. Current FCPA enforcement impedes the United States' foreign policy objectives and therefore implicates the President's Article II authority over foreign affairs.

The President's foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.

But overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.
It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.

During all of the debates over DACA and ACA, President Obama never invoked any sort of Article II power. To the extent he was relying on discretion, it had to be granted by statute. Here, Trump connects his opposition to FCPA prosecutions with his approach to foreign affairs.

DACA, ACA, FCPA. Prosecutorial discretion comes full circle.