IN THE SUPREME COURT OF THE UNITED STATES

No. 16:93 IN THE SUPREME COURT OF THE UNITED STATES STATE OF MARSHALL, Petitioner-Appellant v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, and UNITED STATES DEPARTMENT OF JUSTICE Respondent-Appellees On Writ of Certiorari To The United States Court of Appeals For the Twelfth Circuit BRIEF OF RESPONDENT Team 1707

TABLE OF CONTENTS Page QUESTIONS PRESENTED.................................................... 1 OPINIONS BELOW.......................................................... 2 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED.................. 3 SUMMARY OF THE ARGUMENT............................................. 3 i. Standing..............................................................3 ii. Take Care Clause and Prosecutorial Discretion.............................. 4 STATEMENT OF THE CASE.................................................. 5 i. Statement of Material Facts.............................................. 5 ii. Procedural History..................................................... 7 ARGUMENT................................................................ 9 I. THE STATE OF MARSHALL DOES NOT HAVE STANDING TO SUE FOR AN ORDER COMPELLING THE DEA TO ENFORCE THE CONTROLLED SUBSTANCE ACT IN THE STATE OF WYTHE, EVEN IF THE COURT APPLIES THE SPECIAL SOLICITUDE DOCTRINE... 9 A. The State of Marshall will fail to establish injury in fact because they have no legally protected interest that has been invaded in a concrete and particularized manner........................................................10 B. The State of Marshall cannot prove that the Non-Enforcement directive caused their injury, nor will any remedy adequately redress the alleged harm.......12 C. The Special Solicitude of the States doctrine was incorrectly applied by the district court and should not be considered as part of the standing analysis in the case at bar.................................................. 14 D. The DEA/DOJ do not have a legal duty to enforce the CSA in the State of Wythe. Further, this assertion will make it more difficult for the State of Marshall to satisfy the causation and redressability requirements for standing............................................................... 16 i

II. THE TAKE CARE CLAUSE OF THE UNITED STATES CONSTITUTION, ART. II, SECTION 3, AS A GRANT OF POWER TO THE EXECUTIVE BRANCH, PERMITS THE DEA AND THE DOJ TO USE DISCRETION IN CHOOSING HOW TO ENFORCE FEDERAL DRUG LAWS. IN ADDITION, THE DISTRICT COURT LACKS THE POWER TO COMPEL THE DEA TO ENFORCE THE DRUG LAWS IN WYTHE........................................................ 17 A. The Take Care Clause grants the executive the power over criminal prosecutions................................................... 17 B. Discretion is a necessary component of the President s power to enforce the laws.........................................................18 C. Presidential discretion in enforcing the laws has been practiced by numerous administrations and applied to a variety of laws and issues...............19 D. Executive discretion is presumed immune from judicial review...........21 1. Congress granted the Attorney General discretion in enforcing the CSA...................................................... 21 2. Here, the discretion practiced by the DEA and the DOJ reflects a reasonable and thoughtful consideration of agency resources and priorities that are not suited to be judged by the courts........... 24 3. Executive discretion is at its highest level when an agency chooses not to act..................................................... 25 E. Courts lack the authority needed to compel action in this case.............27 1. The Court only should compel agency action when the action is truly nondiscretionary, that is not the case here....................... 27 2. Compelling action in this case would likely violate appropriations acts that limit the Department of Justice s ability to prosecute cases where states have legalized substances...............................28 CONCLUSION..............................................................30 ii

TABLE OF AUTHORITIES Constitutional Provisions Page(s) U.S. CONST. Art. III, 2, Cl.1.................................................3, 10 U.S. CONST. Art. II, Cl. 1.................................................... 3, 10 U.S. CONST. Art. II, 3............................................... 3, 10, 16, 17 U.S. CONST. Art. IV, 2, Cl. 1................................................... 3 Statutes Administrative Procedure Act, 706........................................3, 8, 12, 21 Controlled Substances Act (CSA)........................................3, 5, 7, 9, 16 Nonenforcement Directive................................ 2, 4, 6, 7, 8, 18, 20, 24, 25, 28 United States Supreme Court Cases Allen v. Wright, 468 U.S. 737, 753, n.19 (1984)....................................9, 12 Chevron USA Inc. v. NRDC, 467 US 837, 842-845 (1984)..........................24, 25 Clinton v. City of N.Y., 524 U.S. 430 (1998)........................................11 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 164 L.Ed.2d 589 (2006)................9 Ex Parte Garland, 71 U.S. 333, 380 (1866)...........................................3 Heckler v. Chaney, 470 US 821, 831 (1985).............................18, 19, 22, 24, 25 Lujan v. Defenders of Wildlife, 504 U.S. 560 (1992).............................9, 12, 13 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 520 (2007)...... 4, 9, 10, 14 Morrison v. Olson, 487 US 654, 706 (1988).........................................17 Norton v. S. Utah Wilderness Alliance, 542 U.S. 64 (2004)........................... 3, 12 Ponzi v. Fessenden, 258 US 254, 262 (1922)........................................ 17 iii

Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 96, S.Ct. 1917 (1976)... 10, 12 U.S v. Armstrong, 517 US 456, 464 (1996)......................................... 18 U.S v. Nixon, 418 US 683, 693 (1974).......................................... 19, 26 Whitmore v. Arkansas, 495 U.S. 149, 155 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990).... 11 Wilbur v. United States ex rel. Kadrie, 281 US 206, 219 (1930)......................... 27 United States Court of Appeals Cases Ameron Inc. v. US Army Corps of Engineers, 808 F.2d 979, 994 (3rd. Cir. 1986)........... 27 Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997)............................... 12 Smith v. Messe, 821 F.2d 1484, 1491 (11th Cir. 1987).................................24 Wyoming v. U.S. Dep t of Interior, 674 F.3d 1220, 1238 (10 th Cir. 2012)................9, 14 State Supreme Court Cases Milliken v. Stone, 7 F.2d 387, 399 (S.D.N.Y. 1925)...................................27 Sanders v. Wythe, 81 D.7d 44 (M.D. Wh. 2014)...................................... 6 United States v. Corrie, 25 F.Cas. 658, 668 (D.C.S.C. 1860)............................ 17 Law Review Articles Kate Andria, The President's Enforcement Power, 88 N.Y.U. L. REV. 1114 (2013).......... 18 iv

QUESTIONS PRESENTED 1) Whether the State of Marshall has standing to sue for an order compelling the United States Drug Enforcement Agency to enforce the Controlled substances Act in the State of Wythe. 2) Whether the Take Care Clause of the Constitution, Art. II, 3, prohibits the United States Drug Enforcement Agency from deliberately choosing not to enforce federal law against known violators in Wythe, as directed by the Noneforcement Directive. And if so, whether the District Court has any authority to compel the DEA to enforce federal law to any extent. 1

OPINIONS BELOW The opinion of the Court of Appeals for the Twelfth Circuit (Case No. 16:93-cv-23185- WM) is unreported, which in part reversed and in part affirmed the decision of the district court. The opinion of the district court, denying plaintiff s request for an order compelling the DEA to shut down certain facilities and arrest individuals, and grating the plaintiff s request for declaratory judgment finding the Nonenforcement Directive unconstitutional as Violative of the Take care Clause (Case No. 16:93-cv-23185-WM), is also unreported. 2

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED Article II, Section 3 of the United States Constitution provides that the executive take Care that the Laws be faithfully executed. U.S. Const. Art. II 3. It also provides that the President shall take Care that the Laws be faithfully executed. Id. Article III, Section 2, Clause 1 of the United States Constitution requires that a court only hear actual cases or controversies. U.S. Const. Art. III, 2, cl.1. Under the Privileges and Immunities Clause of the United States Constitution, every American citizen has the right to freely travel between and among states. U.S. Const. Art. IV, 2, cl. 1. 706(1) of the Administrative Procedure Act allows a court only to compel an agency to perform a ministerial or non-discretionary act. Norton v. S. Utah Wilderness Alliance, 542 U.S. 64 (2004). The United States Constitution grants the executive powers to allow criminal offenses to go unprosecuted under the presidential pardoning power. U.S. Const. Art. II, cl. 1. The Constitution states that the President shall have Power to grant Reprieves and Pardons for Offenses against the United States... [the pardoning power] extends to every offence known to the law, and may be exercised at any time after its commission.... Ex Parte Garland, 71 U.S. 333, 380 (1866). SUMMARY OF THE ARGUMENT I. Standing The State of Marshall does not have standing to sue for an order compelling the Drug Enforcement Agency to enforce the Controlled Substances Act in the State of Wythe, regardless of whether the Court applies the special solicitude doctrine. Standing is an essential requirement 3

for the Court to be able to adjudicate cases to which are proper cases and controversies under Article III 2 of the Constitution. The State of Marshall failed to meet their burden to show proof of injury because they have no legally protected interest that has been invaded in the required manners. Marshall also failed to show a causal link between the Nonenforcement of the CSA in Wythe to the injuries they claimed, and failed to show that the court s adjudication on the matter would sufficiently redress their alleged harm. Finally, the Court should hold that the State of Marshall should not be afforded special solicitude in the standing analysis because the doctrine of special solicitude should only be applied in factually similar cases to Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 520 (2007). For the above-mentioned reasons, the Court should find that the State of Marshall does not have standing in this matter and should dismiss the case. II. Take Care Clause and Prosecutorial Discretion The Take Care Clause of the Constitution serves as a broad grant of power to the Executive in the enforcement of United States laws, which includes Executive power over criminal prosecutions. In order for the Executive to be capable of ensuring that the law be faithfully executed, they must have broad discretion in both enforcing the laws and deciding when to prosecute a case. Executive discretion in enforcing laws is also a practice that is long rooted in American history and tradition. Moreover, executive discretion is presumed to be immune from judicial review because the DOJ and DEA have been granted discretion in enforcement of the laws and courts should not intervene in that process. Finally, the Court lacks the authority needed to compel action in this case because this case involves a discretionary issue, and compelling action would violate Due Process. 4

For the above-mentioned reasons, the DEA and DOJ have discretion in how to enforce federal drug laws and cannot be dictated by either the State of Marshall or the Court in how to enforce those laws. STATEMENT OF THE CASE i. Statement of material facts E. Federal level Since the enactment of the Harrison Narcotics Tax Act in 1914, there have been numerous federal initiatives to control and restrict the use and distribution of addictive substances. R. at 3. One of these numerous initiatives was the Comprehensive Drug Abuse Prevention and Control Act of 1970. Id. That act was passed by Congress and it included the Controlled Substances Act (CSA), which is the basis for most federal anti-drug enforcement today. Id. The DEA was formed to create a unified command for drug enforcement and absorb all of the previously held responsibilities of predecessors such as the Bureau of Narcotics and Dangerous Drugs and the Office of National Narcotics Intelligence. See Reorganization Plan No. 2 of 1973, 3A C.F.R. 263 (1973). Since then, the DEA has been acting as the primary domestic federal enforcement agency of the CSA. R. at 3. F. State level Since the DEA was in charge of resting assured that the CSA was being kept in line, many states began softening their own state level drug laws. Beginning with Oregon in 1973 to decriminalize medical marijuana; to Colorado and Washington in 2012 to legalize marijuana without medical restrictions; all the way to the State of Wythe in 2015 in the case at bar. R. at 4. On January 1, 2015, the State of Wythe enacted the Drug Addiction Resolution Act (DARA), its own legalization scheme that focuses on all addictive substances, not just marijuana. Id. Heroin 5

was the drug that sparked the desire for change in Wythe. R. at 5. In 2013, the number of Americans addicted to heroin reached 1/550. The number of deaths from heroin overdose quadrupled reaching 1/38,000. Id. Between 2000 and 2014, Wythe suffered more heroine overdoses per capita than any other state, losing 1/21,500 residents in 2014. Id. Wythe exceeded the other states in drug enforcement expenditures even though they were only the 12 th most populous state. Id. The addiction rates in Wythe for each illegal substance (cocaine, marijuana, synthetic substances, methamphetamines, etc.) were higher than the average for the United States. Id. In addition, Wythe had the highest incarceration rate of any state, with 1/88 adult residents in prison, jail, or on parole. Id. Around 45% of the state s population had been arrested for drug-related offenses. R. at 6. April 4, 2014, District Court of Wythe ordered the release of over ¼ of Wythe s jail and prison population due to severe overcrowding. Sanders v. Wythe, 81 D.7d 44 (M.D. Wh. 2014). On May 5, 2014, the governor of Wythe requested the Wythe legislature take immediate action to alter the state s drug laws. DARA took effect, which proposed not only to decriminalize all illicit recreational substances, but also to follow the lead of Colorado and Washington by legalizing and regulating the sale of certain substances. Id. DARA set up a system of regulation. For legal substances, all must be purchased from certified ships licenced by the Wythe Department of Trade. To purchase substances, individuals must be over the age of 21 and must show a valid Special Identification Card (SIC) used specifically for recreational drug purchases. R. at 7. The goal of DARA was to reduce drug-related deaths, and it accomplished that by supporting those who needed help for their addiction without fear of prosecution. The governor of Wythe met with President, Attorney General and Director of the DEA after DARA was passed, and those meetings resulted in the Noneforcement Directive which was released by the DOJ. R. at 8. The Nonenforcement Directive states that the DOJ 6

respects Wythe s right to experiment with a new strategy on addictive substances and instruct the DEA to defer enforcement of the CSA within the state of Wythe. Id. Beginning January 1, 2015, the DEA transferred a large amount of its personnel and resources out of Wythe. Id. G. Effects of DARA DARA s main goal was to lower statistics of drug-related deaths in the state of Wythe. In order to do this, the Act had five primary goals that it wanted to achieve: (1) to decrease the rate of drug overdose; (2) to decrease violent crime; (3) to decrease the incarceration rate; (4) to decrease the state criminal justice budget; and (5) to raise revenue by taxing the legal sale of recreational substances. R. at 9. After 1 year of DARA being in effect, all five goals were met. However, the state of Marshall, who share a border with Wythe, claim they have not benefited from DARA. Rather, they are claiming it caused them harm through increased incarceration rates, increased homicide rates, increased rate of illicit substance overdose, and increased rate in illicit substance use. Id. Also, Marshall is alleging that they incurred significant budget deficit due to the need to significantly increase their spending on both law enforcement and incarceration. However, there are no reliable statistics on how much of the illegal substances used by Marshall s citizens are produced within Wythe s borders. R. at 10. As arrests in Marshall have risen, the governor of Marshall has expressed fears that the state jails and prisons will become unconstitutionally overcrowded because of the lack of federal drug enforcement in their bordering state. ii. Procedural History The issue faced by the district court was whether the DEA is legally required to enforce the Controlled Substances Act in the state of Wythe. The Noneforcement Directive ended federal enforcement of the Controlled Substances Act in the state of Wythe, and plaintiff, state of 7

Marshall felt that had been injured by this. Plaintiff s initial argument was that the Take Care Clause of the U.S. Constitution places an implicit limitation on prosecutorial discretion by prohibiting the executive branch from suspending the enforcement of a valid federal law. Marshall contends the DEA is required to meet some minimum level of Constitutionally acceptable enforcement of federal law onto the state of Wythe. Marshall also contended that by failing to enforce the CSA, the DEA has unconstitutionally abdicated a legal duty imposed upon it by congress and requested that the district court compel the DEA to enforce the law as they believed congress intended. District Court agreed with plaintiff, state of Marshall, that the Noneforcement Directive is an unconstitutional order. However, 706(1) of the APA empowers a court to compel an agency to perform a ministerial or non-discretional act. Thus, plaintiff s request to shut down certain facilities and arrest certain individuals was denied. Plaintiff s request for declaratory judgment finding the Nonenforcement Directive unconstitutional as violative of the Take Care Clause was granted, and the DOJ was ordered to rescind that order. On appeal, the order finding the Noneforcement Directive unconstitutional was vacated and the opinion was reversed. The ruling that the court lacks sufficient authority to compel the DEA to take discretionary act, however, was affirmed. Petitioner, state of Marshall, has since appealed to the Supreme Court of the United States to have the lower court s decision overturned. 8

ARGUMENT I. THE STATE OF MARSHALL DOES NOT HAVE STANDING TO SUE FOR AN ORDER COMPELLING THE DEA TO ENFORCE THE CONTROLLED SUBSTANCE ACT IN THE STATE OF WYTHE, EVEN IF THE COURT APPLIES THE SPECIAL SOLICITUDE DOCTRINE. Article III 2 of the Constitution places a limit on matters that the federal courts can adjudicate to only Cases and Controversies. If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 164 L.Ed.2d 589 (2006). The Court has described standing as an essential and unchanging part of the case-or-controversy requirement of Article III. Lujan v. Defenders of Wildlife, 504 U.S. 560 (1992). The burden is with the State of Marshall to show injury in fact, which constitutes an invasion of a legally protected interest which is concrete and particularized. Id. The next step(s) for the Court to consider are causation and redressability, which often, but not always overlap during the standing analysis. These two steps were initially articulated by the [the Supreme] Court as two facets of a single causation requirement. Allen v. Wright, 468 U.S. 737, 753, n.19 (1984). Not only must the State of Marshall show a direct causal link between the DEA s failure to enforce the CSA in Wythe to the injuries they claim to have suffered, but they must also show that adjudication on the matter would adequately redress the harm they claim to have endured. The Court will lastly consider whether or not the State of Marshall should be afforded a special solicitude in the standing analysis. Massachusetts, 549 U.S. 497, 520 (2007). The Court decided that State litigants are quite different than private litigants and therefore should have a more relaxed standard for meeting the standing requirements. Although, See Wyoming v. 9

U.S. Dep t of Interior, 674 F.3d 1220, 1238 (10 th Cir. 2012) (holding there is lack of guidance on how lower courts are to apply the special solicitude doctrine to standing questions). In the case at bar, the Court should determine that the State of Marshall will fail to establish all of the facets the courts require in order for the plaintiff to properly establish standing. They will struggle to show injury in fact, most notably, because their claim involves inaction by the DEA and DOJ against a third party (State of Wythe). Proving causation and redressability will be equally as difficult because of their own harsh penalties and legislation to still strictly punish drug offenders within the State of Marshall. Lastly, the Court should decide the special solicitude doctrine should not be applicable because it is only appropriate to apply in factually similar cases to Massachusetts. Ultimately, the Court should find that the Plaintiff can not successfully satisfy the legal requirements for standing and practice constitutional avoidance by dismissing the case for the aforementioned reasons. A. The State of Marshall will fail to establish injury in fact because they have no legally protected interest that has been invaded in a concrete and particularized manner. The Petitioner must show an invasion of a legally protected interest which is concrete and particularized. Lujan, 504 U.S. 555, 560 (1992). [T]he plaintiff has suffered an injury in fact, i.e., an invasion of a judicially cognizable interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical. U.S.C.A. Const. Art. III 2, cl. 1. The injury has to be fairly traceable to the challenged action of the defendant, and not... the result of independent action of some third party not before the court. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d. 450 (1976). 10

In City of New York, New York brought suit against the President of the United States, Bill Clinton, for a line item veto. The president cancelled provisions of the Balance Budget Act that ultimately exposed the City s liability to Medicaid claims and resulted in a direct and palpable injury. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual Cases and Controversies, and that the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process. Clinton v. City of N.Y., 524 U.S. 430 (1998) (citing Whitmore v. Arkansas, 495 U.S. 149, 155 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990). The City of New York was successfully able to show direct and traceable injury as a result of the line item veto, and further they had a procedural right to challenge the action that made their claim for standing much easier to satisfy. In City of New York, the President s line item veto caused a direct and traceable harm to New York because the veto exposed potential loss in funds due to liabilities that would be exposed under Medicaid disputes. The facts in Clinton v. the City of New York are distinguishable from the facts in the case at bar for several reasons. Here, the State of Marshall is trying to establish injury in fact by way of the DEA/DOJ inaction to a third party. The State of Marshall claims that the Non-Enforcement directive has caused drugs to flood into their state, however, there are several issues with this claim. First, the State of Marshall has minimal statistical data that proves the influx in drug related offenses and incarceration is a direct result of the Non-Enforcement directive. Individuals who choose to break the law are the variable in this equation that make proving injury an insurmountable task for the petitioner. This particular argument is the reason the Court has required proof of injury in fact for so long. In its current status, the requirement forces the plaintiff to show that a legal right has been infringed upon in a direct manner which has caused harm or will likely cause harm. 11

B. The State of Marshall cannot prove that the Non-Enforcement directive caused their injury, nor will any remedy adequately redress the alleged harm. Throughout time, the Court has often combined an inquiry into causation and redressability. These two steps were initially articulated by the [the Supreme] Court as two facets of a single causation requirement. Wright, 468 U.S. 737, 753, n.19 (1984). When the petitioner brings a claim where the alleged harm is caused by the action or inaction against a third party, standing is not precluded, but it is ordinarily substantially more difficult to establish. Lujan, 504 U.S. 555, 562 (1992). The injury has to be fairly traceable to the challenged action of the defendant, and not... the result of independent action of some third party not before the court. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d. 450 (1976). It must be likely and not just speculative that the injury will be redressed by a favorable decision. Id., at 38,43,96 S.Ct. at 1924, 1926. See Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997) (holding [w]hether [Plaintiff] has standing depends principally on whether [federal law] imposes the legal duty she says it does.) The District Court can only compel the DEA/DOJ to enforce the CSA in Wythe under the APA if the action is legally required to be carried out. Norton, 542 U.S. 55, 63 (2004). In Lujan, the Secretary of Interior promulgated through interpretation of 7 of the Endangered Species Act of 1973, a rule limiting the scope of the Act to only area within the United States and high seas. It sought to ensure that any act would not endanger the lives of species whose habitat would be at risk to man made destruction. [O]rganizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of 7(a)(2).... Lujan, 504 U.S. 559 (1992). This Court held that the 12

respondents lacked standing to bring the action. [I]n order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. Id., at 561. The Court determines that when the plaintiff is not the object of the action or inaction, establishing causation and redressability is much more difficult. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction and perhaps on the response of others as well. Id. Here the State of Marshall is bringing suit against the DEA/DOJ for failing to enforce the CSA in Wythe. For that very reason alone, it should be extremely difficult to establish the causal link between the Non-Enforcement directive and the alleged harm. It is also indisputable that the individuals who choose to break the law are the ones directly responsible for the harm to the State of Marshall. Without these individual s actions, the Non-Enforcement directive would not cause any harm to the State of Marshall unless people make the choice to break the law. The case at bar is analogous to Lujan because as in that case, petitioners bring suit of action/inaction against a third party who is not privy to the lawsuit. Even if the DEA/DOJ enforced and prosecuted the CSA in Wythe, the one unpredictable variable, the action of the individuals would be too speculative and unpredictable to adequately redress the alleged injury. Because the State of Marshall chooses to still hand down harsh punishments to those individuals who violate the CSA within their own State, budget increases will continue to be the result of the harsh legislative intent behind the statutes. There will always be violators of the CSA. Whether the DEA/DOJ enforce the CSA within Wythe would only slightly reduce Marshall s alleged injury. Compelling the enforcement of the CSA in Wythe would not greatly negate the increased budget costs the State of Marshall has endured. Proper redress for the State of Marshall s injury can only be accomplished through 13

legislative progression. Lastly, the petitioner seems to ignore the fact that a result of the Non- Enforcement directive is the reallocation of the DEA s resources. This would potentially aid in the redressing of the influx in crime that the State of Marshall is so concerned with because of the increase in presence of federal agents in the State of Marshall. Therefore, the State of Marshall should be found to have failed to establish the two critical components that are required in order to show standing in the matter. C. The Special Solicitude of the States doctrine was incorrectly applied by the district court and should not be considered as part of the standing analysis in the case at bar. State litigants are occasionally afforded a relaxed standard for the requirements of standing. This is commonly referred to as special solicitude. Massachusetts, 549 U.S. 497, 520 (2007). However, See Wyoming v. U.S. Dep t of Interior, 674 F.3d 1220, 1238 (10 th Cir. 2012) (holding there is lack of guidance on how lower courts are to apply the special solicitude doctrine to standing questions). In Massachusetts, the Court determined the State of Massachusetts had proven it had a quasi-sovereign interest in the natural resources of its state that could potentially be affected by global warming. The Court held that Massachusetts was bringing suit on behalf of its citizens (parens patriae) to protect their interest in the potential loss of land due to the lack of regulation of greenhouse emissions. The Court thought it fairly straightforward to recognize that global warming existed and would, if ignored, cause a chance for some of Massachusetts land to be lost to rising sea levels. The minority of the Court felt somewhat differently about the application of this doctrine of special solicitude. A claim of parens patriae standing is distinct from an allegation of direct injury. Massachusetts, 549 U.S. 538 (2007)(Justice Scalia dissenting). Justice Scalia used the reasoning that the majority somewhat incorrectly applied this doctrine and 14

in doing so, may have made the standing requirements under Article III even more difficult for the petitioner to meet. It is not at all clear how the Court's special solicitude for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms.... Id., at 540. (Justice Scalia dissenting). He further goes on to say that just because Massachusetts is a State litigant, does not mean if they fail to meet the Article III requirements for standing they should be allowed preferential treatment and allowed to continue in the matter. In the case at bar, the rationale used throughout Justice Scalia s dissent in Massachusetts should decrease the likelihood that the State of Marshall should be afforded this special solicitude consideration in the analysis of standing. Marshall claims that prisons and jails have become overcrowded and they are concerned for their citizen s constitutional rights. If this is the quasi-sovereign interest the district court thought qualified Marshall for special solicitude, they were mistaken as to how it would affect the remaining part of the standing process. Instead of particularizing the remaining inquiries into injury to only this concern, the district court still erroneously examines and considers the increased costs for hiring more officers due to increased crime rate and the homicide rate in the State of Marshall. The argument for the DEA/DOJ is the State of Marshall has failed to establish Article III standing and therefore this matter is not fit for judicial review. The concerns of the State of Marshall are best suited to be redressed through legislative and executive action, not a remedy handed down by the Court. If the State of Marshall is truly concerned with the Constitutional rights of its citizens, they should start with looking into their own State laws, which, in the respondent s opinion, has been the root of most of the alleged injury the petitioner has brought action for. 15

D. The DEA/DOJ do not have a legal duty to enforce the CSA in the State of Wythe. Further, this assertion will make it more difficult for the State of Marshall to satisfy the causation and redressability requirements for standing. The Take Care Clause serves as a broad grant of power to the Executive branch in enforcing the laws of the United States. Within the Take Care Clause s broad grant of power to the Executive, the Courts have routinely associated the clause with giving the Executive the power over criminal prosecutions. U.S. Const. Art. II, 3. In the case at bar, the President and the Attorney General have decided to enact the Non- Enforcement agreement. This is a result of the President and the Attorney General recognizing that the State of Wythe is trying to take an innovative and unique approach to the ever increasing problem of substance abuse and how to best solve the problem. The State of Wythe is obviously convinced that the Controlled Substance Act is failing its people and the way to treat drug offenders has historically done very little to actually solving this issue. Further, the State of Wythe is taking a different approach to solving these issues for citizens of their state. Through the Take Care Clause, broad deference is giving to the executive in order to assess certain situations such as this, and if this Court compels the executive to force the CSA in Wythe it can potentially upset the long-standing idea of separation of powers. This is a problem that must be addressed through legislative progression within the State of Marshall, not the judicial branch compelling the executive branch to change the order it has handed down. Consequently, the Court should not and can not compel the executive to amend its order because doing so would create a slippery slope to defendants who may be similarly situated in lawsuits similar to the one in the case at bar and potentially raise numerous situations where the separation of powers would be at issue. The result of this would potentially exhaust the Court s 16

resources and open the floodgates of litigation. Therefore, the DEA/DOJ do not have a legal duty to enforce the CSA within the State of Wythe. II. THE TAKE CARE CLAUSE OF THE CONSTITUTION, ART. II, SECTION 3, AS A GRANT OF POWER TO THE EXECUTIVE BRANCH, PERMITS THE DEA AND THE DOJ TO USE DISCRETION IN CHOOSING HOW TO ENFORCE FEDERAL DRUG LAWS. IN ADDITION, THE DISTRICT COURT LACKS THE POWER TO COMPEL THE DEA TO ENFORCE THE DRUG LAWS IN WYTHE. B. The Take Care Clause grants the executive the power over criminal prosecutions. The Take Care Clause serves as a broad grant of power to the Executive branch in enforcing the laws of the United States. Within the Take Care Clause s broad grant of power to the Executive, the Courts have routinely associated the clause with giving the Executive the power over criminal prosecutions. The Take Care Clause serves as the textual source of the President s power over criminal prosecutions. United States v. Corrie, 25 F.Cas. 658, 668 (D.C.S.C. 1860) (take care clause language take care that the laws be faithfully executed). For example, in Ponzi v. Fessenden, the Supreme Court connected the executive s power over criminal prosecutions to the Take Care Clause for the first time. The Court held that, The attorney general was the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed. Ponzi v. Fessenden, 258 US 254, 262 (1922). More recently, in Morrison v. Olson, Justice Scalia noted in his dissent that, Governmental investigation and prosecution of crimes is a quintessentially executive function. Morrison v. Olson, 487 US 654, 706 (1988). 17

Here, the DOJ and the DEA have chosen to relax enforcement of the CSA in the State of Wythe, as evident in the Nonenforcement Directive. The DOJ and the DEA fall within the Executive Branch of the federal government. Therefore, the power of the Executive over criminal prosecutions extends down through the DOJ and the DEA. The Take Care Clause grants broad power to the Executive branch. This constitutional power placed in the Executive Branch to take care that the laws be faithfully executed has been connected to the Executive Branch s power over criminal prosecutions. B. Discretion is a necessary component of the President s power to enforce the laws. The aforementioned grant of power in the Executive Branch by the Take Care Clause requires the Executive Branch to take care that the laws be faithfully executed. However, in order to accomplish this task, the Executive must have discretion. Discretion is necessary because as Alexander Hamilton stated the Responsibility for administration of government fell peculiarly within the province of the executive department and this entails some flexibility as to means. Kate Andria, The President's Enforcement Power, 88 N.Y.U. L. REV. 1114 (2013). The Courts of the United States have held in numerous cases that such discretion exists as an essential component of the Executive s power in enforcing the laws. For instance, in US v. Armstrong, the Court asserted that discretion is an essential component of the President s obligation to discharge his constitutional responsibility to take Care that the Laws be faithfully executed. U.S v. Armstrong, 517 US 456, 464 (1996). This premise has been extended to two types of actions that are relevant in this case. First, in Heckler v. Chaney, the Court extended this concept of discretion to agency actions. The Court held that an agency s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency s absolute discretion. Heckler v. Chaney, 470 US 821, 831 (1985). 18

Second, in both U.S v. Nixon and US v. Cox, the Court extended the rule of discretion to prosecutions. In U.S. V. Nixon, the Court held that the executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case. U.S v. Nixon, 418 US 683, 693 (1974). In U.S v. Cox, the Court held that it is as an officer of the executive department that (the federal prosecutor) exercises a discretion as to whether or not there shall be a prosecution in a particular case. U.S v. Cox, 342 F.2d 167, 171 (5th Cir. 1965). Here, the extension of the doctrine of discretion to both agency action and prosecutorial functions is relevant because both the DEA and the DOJ are parties in this case. The DEA, as an agency, is granted discretion in its enforcement of the laws through the holding of Heckler. Further, the DOJ is granted discretion regarding its decisions of when to prosecute a case by both Cox and Nixon. Therefore, both the DEA and the DOJ have discretion in how they choose to enforce the CSA in the State of Wythe. The Executive Branch is constitutionally given the power to take care that the laws of the United States are faithfully executed. This grant of power requires the Executive Branch to oversee a great number of laws and programs passed into law by Congress. However, as stated by Alexander Hamilton, and this Court on numerous occasions, executing the laws of the United States necessitates discretion. H. Presidential discretion in enforcing the laws has been practiced by numerous administrations and applied to a variety of laws and issues. The Courts acceptance of discretion as a necessary component of the Executive s power over the enforcement of the laws throughout time combined with the repeated use of discretion by various presidents demonstrates that Executive Branch discretion is a deeply rooted tradition in the United States. 19

This practice of discretion by the Executive is present in the very first presidency, that of George Washington. George Washington directed numerous criminal and civil prosecutions and ordered the discontinuance of others. Washington s control over and involvement in these prosecutions was uncontested by Congress. Congress, at a time when politicians were hyper aware of how certain actions could impact long term policies in this country, choose not to contest this use of discretion by President Washington. Kate Andria, The President's Enforcement Power, 88 N.Y.U. L. REV. 1053 (2013). More recently, George W. Bush practiced Nonenforcement based upon Executive discretion in a variety of areas. Generally, there was widespread deregulation via Nonenforcement policies. Some examples of agency Nonenforcement under this administration are as follows. Enforcement actions brought by the FDA declined dramatically. The Department of Labor, using discretion, opted to shift resources into a scheme of voluntary enforcement rather than continuing a policy of punitive enforcement. Nonenforcement policies were also evident in the actions of the EPA and the DOJ. Kate Andria, The President's Enforcement Power, 88 N.Y.U. L. REV. 1061-63 (2013). Most recently, the Obama administration employed discretion and Nonenforcement when dealing with some major enforcement issues. First, the Executive Branch under the Obama administration decided to cease enforcing federal drug laws against medical marijuana distributors. Immigration was another area during this period time where discretion and Nonenforcement were practiced by the Executive Branch. Finally, enforcement discretion was used to justify delays in the enforcing portions of the Affordable Care Act. Kate Andria, The President's Enforcement Power, 88 N.Y.U. L. REV. 1066-1067 (2013). 20

The actions by the DOJ and the DEA in this case, using discretion in enforcing the CSA in the state of Wythe, follow in line with discretion practiced by previous administrations dating back to the first presidency of the United States. Here, the DEA and the DOJ have decided, via their right to use discretion, to refocus resources to other areas that align more with the institutional goals of both the DOJ and the DEA. I. Executive discretion is presumed immune from judicial review. APA 5 USC 701(A) establishes a general presumption that all final agency decisions are subject to judicial review. However, it creates an exception for any agency action that is committed to agency discretion by law. When the agency is granted discretion in enforcement the Court is hesitant to review because the reviewing court would have no law to apply in evaluating the determination. Further, in exercising its discretion provided by Congress through the CSA, the DEA and the DOJ practiced reasonable and thoughtful consideration of how to best to expend resources and implement agency policies. Finally, executive discretion is at its highest level when an agency chooses not to act, as in the case at bar, where the DOJ and DEA choose, based on discretion, not to enforce certain provisions of the CSA in the State of Wythe. 1. Congress granted the Attorney General discretion in enforcing the CSA. The Courts are very hesitant to review agency actions and policies. However, despite the general presumption against reviewing such decisions, the Courts have decided that review is possible when Congress has clearly removed all discretion from the agency at issue. In this case, Congress has done no such thing. In fact, the CSA clearly grants the Attorney General broad discretion in numerous ways and therefore does not sufficiently remove agency discretion to the point where the Courts should feel comfortable reviewing this case. 21

In Heckler v. Chaney, the Court held that agency actions are only reviewable where... Congress has otherwise circumscribed an agency s power to discriminate among issues or cases it will pursue. Heckler v. Chaney, 470 US 821, 833 (1985). However, in this case, Congress has decided to grant the DOJ, through the Attorney General, discretion in how the Attorney General chooses to enforce the CSA. In addition, even if Congress was to use language which seemed to have removed discretion from enforcement, the Court still prefers to allow for discretion. Mandatory language is usually not enough to override the presumption. For example, in Inmates of Attica Correctional Facility, the word require, as used in the legislation, was held to be insufficient to demonstrate a broad congressional purpose to bar the exercise of executive discretion. Inmates of Attica Correctional Facility, 477 F.2d 375, 381 (2nd Cir. 1973). Further, the Court held in Heckler v. Chaney, that the phrase shall enforce was not strong enough to override the presumption towards discretion. The Court explained that the legislation must include additional guidelines as to the circumstances under which enforcement is to occur. Heckler v. Chaney, at 834. Here, the CSA uses the language shall when discussing the penalties that violators will receive when conducting certain acts. Based upon the reasoning put forth by the Court in Heckler v. Chaney, it follows that the world shall, as used in the CSA, is not enough on its own to remove discretion from the Attorney General. In addition, there are numerous points in the CSA where Congress granted the Attorney General a large amount of discretion. For example, 871(b) states, The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter. The aforementioned subchapter concerns education and 22

research programs. The Attorney General has the authority to initiate and operate any research program he sees fit. Therefore, the action taken in this case, to reduce enforcement in Wythe, could be considered a research program. The government needs to understand how best to deal with changing drug policies in states throughout the country, so this enforcement strategy can be classified as research being done by the DOJ and the DEA to better understand issues relating to enforcement. Just as the State of Wythe is experimenting in passing DARA to try and better handle drug related issues, the DOJ and DEA have decided to experiment with enforcement strategies. Such experimentation and research is within the discretion of the Attorney General as afforded to him by the CSA. The CSA also provides in 811(a)(2) that the Attorney General has the discretion to remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule. This subsection also supports the actions taken by the DOJ and the DEA in Wythe. The Attorney General has the power to remove a substance from the drug schedules, therefore it would follow that the Attorney General would possess discretion in how certain drugs are enforced in various states. This power of removal and the discretion that accompanies it demonstrates that Congress granted the Attorney General a great deal of power in enforcing the CSA. In numerous sections of the CSA, Congress explicitly grants the Attorney General discretion in carrying out his duties under the CSA. Therefore, Congress has sufficiently granted the Attorney General discretion via legislation to uphold the judicial presumption against reviewing such agency policies and discretion based decisions. 2. Here, the discretion practiced by the DEA and the DOJ reflects a reasonable and thoughtful consideration of agency resources and priorities that are not suited to be judged by the courts. 23

The DOJ and DEA are provided discretion in how each agency chooses to enforce the CSA. In this case, involving the Nonenforcement Directive as related to the State of Wythe, the DOJ and DEA have demonstrated a thoughtful consideration of resources and agency priorities. This thoughtful consideration further proves that judicial review is not appropriate in this case. The general rule is that judicial review of prosecutorial decisions is generally improper given that the prosecutorial function, and the discretion that accompanies it, is committed by the Constitution to the executive. Smith v. Messe, 821 F.2d 1484, 1491 (11th Cir. 1987). However, the courts have expanded upon this general rule in several cases. First, in Chevron USA Inc. v. NRDC, the Court held that an agency has broad discretion to choose how best to marshal its limited resources to carry out its delegated duties. Chevron USA Inc. v. NRDC, 467 US 837, 842-845 (1984). The following year the Court further elaborated on the notion put forth in Smith v. Messe when it ruled on the case of Heckler v. Chaney. In Heckler v. Chaney, the Court held that, An agency s decision not to take enforcement action should be presumed immune from judicial review. An agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise... the agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Heckler v. Chaney, 470 US 821, 831-32 (1985). These two cases clearly establish that the Court generally will not review cases concerning agency action or inaction because of two main reasons. First, the agency is the institution best suited to determining how resources should be spent. Second, the agency should be able to formulate and order priorities and have the latitude to follow through on such priorities. Here, both reasons for the court to abstain from reviewing agency action are present. 24