I’m delighted to report that Zachary Price, who is now a Visiting Assistant Professor at the University of California Hastings College of the Law, will be guest-blogging this week about his Enforcement Discretion and Executive Duty (forthcoming in Vand. L. Rev.). Prof. Price has also written previously about the rule of lenity, the constitutionality of the Voting Rights Act, and constitutional issues relating to criminal jurisdiction of Indian tribes and territorial governments).
Our own Will Baude has already posted about the article, which discusses the proper scope of the President’s discretion to decline enforcement of particular federal statutes in some or all cases. This issue is relevant to many current controversies, including disputes over President Obama’s immigration policy and his suspension of the employer mandate and other key provisions of the Affordable Care Act. Prof. Price’s article proposes that the scope of the executive branch’s enforcement discretion is ultimately almost entirely up to Congress, but that in the absence of more specific statutory guidance two constitutionally based presumptions should shape the scope of the executive branch’s discretion: (1) a presumption in favor of case-by-case non-enforcement authority, and (2) a presumption against categorical or prospective non-enforcement of federal statutes for policy reasons. I much look forward to Prof. Price’s visit!