Agency nonenforcement is an important but vexing aspect of administrative law. On the one hand, nonenforcement can safeguard liberty. As Zach Price documented in his article Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014), “a central normative reason for separating legislative and executive functions, as articulated by Montesquieu, the Federalist Papers, and other foundational sources, is to create a safety valve that protects citizens from overzealous enforcement of general prohibitions.” Furthermore, because agencies do not have infinite resources, it may not be possible to pursue every matter. On the other hand, declining to enforce the law may open the door to bias, regulatory leveraging (i.e., when an agency leverages its enforcement authority to essentially trade nonenforcement for something the agency wants more, perhaps in pursuit of a policy that Congress has not authorized), and even nullification of legislation. The liberty and separation-of-powers implications of an agency’s decision to stand down therefore can be significant.
In April 2021, a divided panel of the D.C. Circuit decided Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 993 F.3d 880 (D.C. Cir. 2021) (hereinafter New Models), an important case about when an agency’s nonenforcement decisions are reviewable. In particular, the Court examined the following question: What happens if an agency’s explanation for nonenforcement rests on both a legal conclusion and an exercise of prosecutorial discretion? The D.C. Circuit has previously held—in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 892 F.3d 434 (D.C. Cir. 2018) (hereinafter Commission on Hope)—that Federal Election Commission (FEC) decisions driven by prosecutorial discretion are not reviewable. In New Models, the Court held that the same principle would also apply to decisions driven by a combination of prosecutorial discretion and legal interpretation. In December 2022, the D.C. Circuit declined to rehear New Models en banc.