Author Archive | Prof. Zachary Price, guest-blogging

The final problem of enforcement discretion is how executive officials should understand their role when enforcing federal criminal laws and other statutes that can’t possibly be fully enforced with available resources. Here recent debates over federal marijuana enforcement and immigration policy are key examples. As more and more states have legalized marijuana use either for […]

In my last two posts, I’m going to apply my framework to some contemporary examples. Because I’m focusing on matters of current interest, these examples all come from the Obama Administration. As I indicated at the outset, however, aggressive use of non-enforcement to set policy is not unique to this administration. Recent Republican administrations have […]

I’ve now laid out my basic framework for the scope of executive enforcement discretion: Congress is generally free to expand or contract executive non-enforcement power, but in the absence of such legislation the executive presumptively holds case-by-case non-enforcement authority but not categorical or prospective non-enforcement powers. I want to quickly address two points that came […]

As I explained in my last substantive post, I believe the Constitution prescribes two baseline presumptions regarding the scope of executive enforcement discretion — a presumption in favor of case-by-case non-enforcement authority, and a presumption against categorical or prospective non-enforcement for policy reasons. The boundary between case-by-case and categorical or prospective non-enforcement admittedly may not […]

George Will’s latest column discusses my article. You can read it here. I’m of course enormously pleased and flattered.

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, […]

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 […]

As I indicated in my previous post, before I go further into the framework that I believe governs the scope of executive enforcement discretion, I want to offer a few thoughts on why the problem is hard to think about and why recent presidents have resorted to non-enforcement of statutes as a means of advancing […]

Hello! I’m delighted to be guest-blogging this week about my forthcoming article, “Enforcement Discretion and Executive Duty.” I’m grateful to Eugene for the opportunity to participate in the blog and for his introduction yesterday, and to Will for his generous post about my article a few weeks ago. My article will be published in the […]