Not When, Not Ever: Enforcement Discretion and Statutory Preclusion

n the early 1980s, prisoners on death row in Texas and Oklahoma petitioned the FDA. Their argument was statutory, not constitutional: the drugs their states planned to use for execution had been approved for ordinary medical purposes and never tested for killing anyone, they would be administered by untrained personnel, and that made them misbranded under the Food, Drug and Cosmetic Act. They asked the FDA to label the drugs, warn prison administrators, and seize supplies. The commissioner declined, saying enforcement was indicated only where there was a serious danger to public health or a blatant scheme to defraud, and that state lethal injection laws were neither.

In 1985, the Supreme Court held that an agency’s decision not to enforce is presumed to be beyond judicial review. It never reached whether the FDA had authority over execution drugs at all.

This closes out the threshold series, and it’s different from the five doctrines that came before it. Standing, finality, ripeness, exhaustion, and mootness all ask about who sued, how far the agency got, or when the case arrived. This one says the decision isn’t a court’s to review no matter who asks or when. It comes out of one sentence in APA section 701, with two exceptions inside it: one Congress writes into particular statutes, and one the courts built out of the phrase “no law to apply.”

In this episode:

• Rehnquist’s three reasons in Heckler v. Chaney, and why the prosecutor analogy does most of the work
• Justice Marshall’s concurrence, that easy cases make bad law and the presumption was created out of whole cloth
• What it takes to rebut the presumption: Dunlop v. Bachowski, mandatory verbs, and defined triggers
• The abdication footnote, Adams v. Richardson, and the difference between prioritizing and announcing you’ll never enforce
• Why the DACA rescission wasn’t unreviewable non-enforcement, and what that says about announcing versus quietly stopping
• Cook v. FDA, where the import statute supplied the guidelines the main opinion said could rebut the presumption
• Webster v. Doe and the clear-statement floor under colorable constitutional claims
• Preclusion by statute, implied preclusion in Block v. Community Nutrition, and the pullback in Bowen v. Michigan Academy
• Patel v. Garland: a checked box on a Georgia driver’s license form, a factual finding resting on a mistake about Georgia law, and no court that can revisit it
• The odd alignment in Patel, where the Solicitor General argued for the narrower bar and the Court had to appoint counsel to defend the judgment
• What counts as a question of law after Wilkinson v. Garland, and the other direction in the visa revocation case
• Noem v. Doe on temporary protected status, and the principle that subsidiary determinations merge into an unreviewable final action
• A Tenth Circuit panel that vacated its own judgment to see whether it had been overtaken, looked again, and came out the same way
• Political question as the constitutional cousin of “no law to apply,” and why it rarely decides an administrative case
• Whether prosecutorial discretion scales, since declining to enforce a standard at all is a practical repeal for everyone it covered