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08/10/2013

Michael McConnell on the Dispensing Power
Michael Ramsey

In the Wall Street Journal, Michael McConnell: Obama Suspends the Law.  (This is from a while back [while I was on vacation], but I like the dispensing power).

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

Absolutely right, though as Mark Tushnet points out, with regard to any particular executive action it's important to look at the statutory details.  Modern statutes tend to give a good bit of discretion to the President.

(Via Richard Reinsch at Liberty Law Blog).