Before I go on to explain the basis for the framework I propose in my article, I want to offer a few thoughts on one last preliminary issue, namely, why modern presidents may be tempted to use non-enforcement as a policy tool.
We live in an age of presidential administration and partisan gridlock. The public tends to hold the President accountable for failures of national policy, but at the same time, particularly in periods of divided government, presidents can’t necessarily count on Congress to develop legislative solutions in good faith. (The current Congress, for example, is hardly interested in seeing Obama’s implementation of the Affordable Care Act succeed.)
This structure puts enormous political pressure on the executive branch to try to make policy on its own. Non-enforcement may be a particularly attractive tool for doing so, insofar as it may seem to provide a focused benefit to some while harming no one. Also, courts have generally been reluctant to review executive enforcement decisions, so there may be less risk of judicial reversal than in the case of affirmative judicial reversal.
For these reasons, I think presidents are likely to continue to face pressures to rely on non-enforcement of particular statutory requirements as a policy tool, at least during periods of divided government.
Yet for all the reasons that non-enforcement may be attractive to the executive branch as a policy tool — its circumvention of Congress, the limited political constraints on its use, and the unlikelihood of judicial reversal — it may also be insidious. An unbounded authority to decline enforcement could amount to a sort of second veto, an authority to read statutory provisions out of the code, at least for the duration of a particular presidency.
So I think it’s important to develop a proper understanding of the scope of enforcement discretion and the executive branch’s law enforcement duty. That’s the central task undertaken in my article.