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11/27/2013

Zachary Price: Enforcement Discretion and Executive Duty
Michael Ramsey

Zachary Price (University of California Hastings College of the Law) has posted Enforcement Discretion and Executive Duty on SSRN.  Here is the abstract:

Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of declining to charge certain drug offenses, abstaining from investigation and prosecution of certain marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of deportation laws against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion—the authority to turn a blind eye to particular legal violations—may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This article fills that gap.

Through close examination of the text, history, and normative underpinnings of the Constitution, as well as relevant historical practice, the article demonstrates that there is indeed a constitutional authority of enforcement discretion—but it is both limited and defeasible. Presidents may properly decline enforcement of civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” But this authority does not extend to prospective licensing of prohibited conduct, nor to policy-based non-enforcement of federal laws for entire categories of offenders. Presuming such forms of executive discretion would collide with another deeply rooted constitutional tradition: the principle that American Presidents, unlike English Kings, lack authority to suspend statutes or dispense with their application to particular individuals. This framework not only clarifies the proper executive duty with respect to enforcement of federal statutes, but also points the way to proper resolution of other recurrent separation-of-powers issues.

A very important article on a timely topic that's come up here a number of times.