Federal Criminal Law, Congressional Delegation, and Enforcement Discretion

Daniel C. Richman, Columbia Law Review


Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, this Article argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer accountability against suspicion of presidential power, the Article cautions against reform proposals that would undermine considered political decisions about the allocation of criminal enforcement authority.