Zachary Price on the Constitution and Enforcement Discretion

People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention to an important new article on this subject — Enforcement Discretion and Executive Duty, by UC-Hastings’s Zachary Price. for those interested in a much deeper dive into the text, history and tradition relevant to enforcement discretion, I highly recommend it.

Here’s the abstract (excerpts from the discussion of the ACA are below the fold):

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.

While Price does endorse a certain amount of enforcement discretion, he has a fairly skeptical assessment of the recent ACA suspensions. On the decision to temporarily suspend plan requirements (i.e., “if you like your plan you can keep your plan”):

[After noting that the administration has not clearly articulated the basis for the policy, Price writes:] To the extent the policy has no other statutory basis, it defies the proper understanding of executive duty. The exercise of enforcement discretion reflected in the policy extends far beyond the case-specific enforcement discretion that may be presumed with respect to any particular statutory requirement. It amounts, rather, to a prospective suspension of the law for a specified category of insurance plans—precisely the form of executive nonenforcement that is presumptively impermissible. Yet far from authorizing such categorical non-enforcement, the statute appears designed to prevent it.

On the suspension of the Affordable Care Act’s employer mandate, Price writes:

Treasury’s reasoning betrays an altogether too lax conception of the Executive’s duty to execute enacted statutes. In effect, Treasury’s logic is that it cannot collect penalties because Treasury itself failed to require employers to report information necessary to detect violations—notwithstanding a statutory mandate to do so. It is true that agencies often miss statutory deadlines for promulgation of rules, and in some cases the complexity of regulatory problems may make such deadlines unrealistic given available agency resources and the required administrative procedures for rulemaking. In general, however, missing such deadlines is itself a breach of executive duty. In this case, the Treasury Department claimed a general “administrative authority,” supposedly derived from the agency’s organic rulemaking authority, “to grant transition relief when implementing new legislation like the ACA.” Even assuming the IRS holds some organic authority to tailor burdensome statutory requirements during a transitional period, such authority should not permit a decision, six months before a statutory deadline is even reached, to excuse compliance with specific statutory reporting requirements for a full year.