So what is the correct framework for enforcement discretion? I believe the Constitution carries a central tension on this point, one that’s best resolved by the two presumptions I articulated at the outset — a presumption in favor of case-by-case discretion and a presumption against categorical or prospective non-enforcement for policy reasons.
At the outset, let me address two questions of scope that have come up in the comments. First, the focus of my analysis here and in the article is policy-based non-enforcement. Going back to Thomas Jefferson, Presidents have also refused to execute laws for constitutional reasons. In general, I believe that this longstanding executive practice is sound, although it presents the difficult question of what standard the President should apply in judging unconstitutionality. In any case, the issues it raises are distinct from the problem of policy-based non-enforcement.
Second, my analysis also isn’t focused on questions of judicial review. Courts have generally been very reluctant to review executive enforcement decisions. As I mention in passing in this article (and plan to elaborate in greater detail in my next paper), there may well be good reasons for that reluctance. A court-ordered prosecution might be a scary thing, particularly if it meant the court compromised its neutrality in protecting the defendant’s rights. The key point here, though, is that the executive branch may have constitutional obligations that go beyond what any court would enforce. So in this paper I’ve focused just on the question of executive duty, without regard to whether that duty is judicially enforceable.
With those scope clarifications out of the way, let me go back to the tension I see in the constitutional structure.
On the one hand, the Constitution reflects a principle of congressional supremacy in policymaking. This idea is embodied most specifically in the Take Care Clause, which mandates that the President “shall take Care that the Laws be faithfully executed.”
It’s also reflected in the refined mandates governing the lawmaking process. These provisions ensure broad geographic representation in Congress and assign the President only the limited role of signing or vetoing bills (which even then may be enacted over the President’s veto). Unbounded non-enforcement power would upend this scheme by giving the President a sort of second veto over laws, whenever enacted, that the President does not wish to see enforced during his or her presidency.
Finally, there are deep historical roots to this notion of legislative supremacy. English kings and queens claimed the prerogative to suspend statutes or grant dispensations allowing particular individuals to violate them. In response to perceived royal abuses, Parliament abolished these suspending and dispensing powers in the first two articles of the English Bill of Rights of 1689. This background makes it quite unlikely that the framers intended to confer broad authority to suspend federal statutes on the President.
Yet legislative supremacy isn’t the whole story. While the constitutional scheme dictates that the President must execute laws that Congress enacts, it does not require that this function be performed robotically. On the contrary, the very separation of legislative and executive functions implies that enforcing the laws may be a matter of judgment, a task of applying general laws appropriately to particular circumstances.
While this idea is mainly a structural inference, it draws additional support from the Bill of Attainder Clause. This clause prohibits Congress from passing laws that impose punishment on individuals directly, without intervening executive or judicial action. It also draws some support from the Pardon Clause. To some extent, the President’s pardon power cuts both ways. It might imply that executive clemency — which, unlike non-enforcement, requires a formal, irrevocable action by the President — is the proper way of forgiving legal violations. But it does also reinforce the idea that tailoring general laws to particular circumstances is part of the executive role.
This conception of the executive function has deep historical roots, too. Foundational theorists like Blackstone and Montesquieu justified the separation of legislative and executive functions based on the need to put some distance between law enactment and law application, so as to prevent the execution of “tyrannical laws . . . in a tyrannical manner.”
So, on the one hand, the Constitution prescribes a principle of congressional primacy in lawmaking, while on the other it implies that some degree of independent judgment is an integral part of the executive function. How do we reconcile these principles?
I suggest doing so by means of my two presumptions: we should presume that executive officials may properly exercise some discretion to make case-by-case exceptions to the application of general laws, but at the same time we should presume that they lack authority to supplant the policy of a statute by categorically exempting offenders from enforcement or prospectively licensing statutory violations.
These presumptions give force to the idea that the executive function should not be performed robotically, while at the same time they prevent the two forms of non-enforcement that most closely resemble the abrogated royal suspending and dispensing powers.
These presumptions, however, are only that — presumptions. In my next post, I’ll address the scope of Congress’s authority to rebut the presumptions and expand or contract discretion with respect to any particular statutory prohibition.