More on Prosecutorial Discretion and the Dispensing Power
Michael Ramsey
In the Wall Street Journal, Nicholas Quinn Rosenkranz: Obama Suspends the Law -- What Would Lincoln Say? (comparing President Obama's delay of the ACA employer mandate to Lincoln's suspension of habeas corpus):
[L]ike Lincoln's action, Mr. Obama's was a unilateral executive suspension of the law. But in every other way, the president's behavior could not have been more different from Lincoln's.
First, Lincoln's action was at least arguably constitutional, while Mr. Obama's is not. The Constitution has a provision for suspending habeas. It has no general provision for executive suspension of laws. English kings used to suspend laws, but the Framers rejected that practice: The president "shall take Care that the Laws be faithfully executed."
Second, Lincoln volunteered an articulate constitutional defense of his action. Mr. Obama seemed annoyed when the New York Times dared to ask him the constitutional question....
Third, Lincoln offered a brilliant and compelling argument about the necessity of his action ...
Fourth, and most strikingly, Lincoln promptly looked to Congress to ratify his unilateral action. Congress agreed with Lincoln, and the president welcomed and signed new legislation. ...
I'm sympathetic with the criticism (especially with the complaint that the President has failed to explain the legal basis of his action), but it may overstate. Arguably, the ACA delay can be justified as an exercise of prosecutorial discretion. (See this post on Judge Brett Kavanaugh's recent opinion taking a broad view of prosecutorial discretion). The difference between President Obama's action and President Lincoln's action is that the former is declining to enforce a statute against private parties, whereas the latter (arguably) declined to recognize a constitutional protection for private parties. In terms of constitutional protection of liberty, the latter is a serious concern; it is less clear why the former should be. One might think that liberty is enhanced by a broad presidential power to decline to enforce statutes; the result would be that restrictions on individual liberty require the concurrence of two separate branches -- something that fits well with the framers' idea of structural protections of liberty.
That, I take it, is the point of Judge Kavanaugh's observations (In re Aiken County, pp. 15-16):
The Executive’s broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior – more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law. The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. See THE FEDERALIST NO. 47, at 269 (James Madison) (Clinton Rossiter ed., rev. ed. 1999) ("The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."); 1 MONTESQUIEU, THE SPIRIT OF LAWS bk. 11, ch. 6, at 163 (Thomas Nugent trans., 1914) ("When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."). After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive).
In sum, there is substantial tension between the President's duty to faithfully execute the law (which was, as Professor Rosenkranz says, the framers' rejection of the by-then-discredited dispensing power) and the idea of prosecutorial discretion as a check on a tyrannical legislature (as expressed by Judge Kavanaugh). The problem is that both ideas seem well-rooted in founding-era thought. I'm not sure why liberty-oriented commentators such as Professor Rosenkranz favor the former over the latter.
(Note: I confess to finding this issue more difficult on reflection than I did initially, when I thought the dispensing power argument was largely conclusive).
Related: In the Washington Post, Charles Krauthammer: Can Obama Write his Own Laws? Again, most of the examples given are not of the executive writing news laws, but of the executive declining to enforce laws against private parties. But still, there's this:
The point is whether a president, charged with faithfully executing the laws that Congress enacts, may create, ignore, suspend and/or amend the law at will. Presidents are arguably permitted to refuse to enforce laws they consider unconstitutional (the basis for so many of George W. Bush’s so-called signing statements). But presidents are forbidden from doing so for reasons of mere policy — the reason for every Obama violation listed above.
Such gross executive usurpation disdains the Constitution. It mocks the separation of powers. And most consequentially, it introduces a fatal instability into law itself. If the law is not what is plainly written, but is whatever the president and his agents decide, what’s left of the law?
And yet ... does it "mock[ ] the separation of powers"? Or (speaking here just of the President declining to enforce restrictions on private parties) does it implement the separation of powers by providing an independent check on the legislature?