The President’s Non-enforcement Power

the-once-and-future-king-20141

Are there any limits to the president’s discretion not to enforce a law? Conservative scholars think so. I say they’re wrong, and that we are witnessing the rise of what I call crown government in The Once and Future King. Where conservatives see a constitutional crisis, I see the inevitable working out of the pathological logic of presidential government.

Under his legislative powers, a president may effectively make laws by decree. That’s rather like the royal prerogative to which the Framers objected, with the difference that presidents are largely immunized from accountability, unlike modern prime ministers.

Presidents can also unmake laws by vetoing them or, more controversially, by refusing to enforce them. They have always had the power to veto a bill, subject to a two-thirds override by both houses of Congress. In recent years, however, they have enjoyed an expanded, non-reviewable veto power: without vetoing a bill and risking a Congressional override, they might simply decide not to enforce it.

On average, few presidential vetoes are overridden by Congress, but it does happen. Congress successfully overcame a third of George W. Bush’s vetoes (4 out of 12), and Andrew Johnson and Franklin Pierce had the dubious distinction of having more than half of their vetoes undone in this way. A president will thus be tempted to avoid the embarrassment of an override through the simple expedient of declining to enforce laws with which he disagrees, and this can be seen as a non-reviewable veto power. The practice came to a head over the last ten years with “signing statements” in which a president, without vetoing a bill, states that he does not consider himself bound by it.

Signing statements became controversial when issued by George W. Bush. Other presidents had issued them before him, and Obama did so after him. In principle, a president’s refusal to enforce an unconstitutional act is not a shocking exercise of executive power. Were Congress to pass a law abridging the right to practice one’s religion, for example, no one would expect the president to enforce it while waiting for the Supreme Court to strike it down. What made Bush’s signing statements controversial was that the laws he challenged included bans on torture and restrictions on other counterterrorism measures. Bush had asserted broad powers to conduct war as he saw fit, powers which the Supreme Court subsequently curtailed.

Under Obama, this implicit veto power has been expanded in two ways. First, it has been employed to negate laws passed by prior Congresses, as opposed to new laws that are the subject of signing statements. And second, it has been employed to nullify laws that are constitutionally unobjectionable.

The Obama administration has declined to enforce laws that were thought constitutionally valid when enacted in the past but which the administration now thinks constitutionally suspect. The 1996 Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of provisions of federal law, was passed by large majorities in both house of Congress and signed into law by Clinton. In 2011, however, Obama’s Department of Justice announced that it regarded DOMA to be unconstitutional and would no longer defend it in court. The Supreme Court backed him up—but then he didn’t need their cover.

Without asserting a constitutional basis for doing so, the administration has also refused to enforce certain laws as a matter of prosecutorial discretion. Congress refused to pass Obama’s Dream Act, which would have given conditional permanent residency to some “illegal” immigrants, and so he issued an executive order that they not be deported. The new program provides a formalized Citizenship and Immigration Services procedure, called the Deferred Action for Childhood Arrivals, which would allow an estimated 1.7 million young undocumented immigrants to live and work in the United States. Obama had done more than decline to enforce the old law: by executive fiat he had replaced it with a new law. One of the Dream Act sponsors enthused that “this is the single largest opportunity we’ve had since [the amnesty program of] 1986 to bring people out of the shadows and into documented status.” The executive obviously possesses a degree of discretion in the manner in which it enforces the law, but if this permits a president to disregard broadly written laws in the face of Congressional opposition, and replace them with new laws of his own making, one might reasonably ask whether any limits can be set to his expanded veto powers.

I think I know the answer.

There is, of course, the theoretical possibility that someone might somehow persuade a court that he has standing to object to the non-enforcement power. I think that unlikely, and it is more unlikely still that the Supreme Court would want to wade into what they would regard as a political question, a turf war between a president and a complacent Congress.

That leaves the voters. But then I haven’t noticed any great expressions of republican sentiment from them of late. There is a natural inclination to kingly government, observed Benjamin Franklin in 1787, and wasn’t he prescient?

F.H. Buckley

F.H. Buckley is a Foundation Professor at George Mason School of Law and the author of “The Once and Future King: The Rise of Crown Government in America” (Encounter Books, April 8, 2014).

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Comments

  1. Aaron G says

    A couple points.

    1. A presidential veto is not a power to “unmake” laws. The legislature can fart unicorns and strawberries, but it’s not law until the president signs it (and if it’s unconstitutional, it’s still not law!). This would be a good thing if presidents vetoed more often.

    2. Presidents are subject to more and less accountability than prime ministers under a Westminster brand of parliamentary government. Presidents are subject to less accountability to the legislative branch, but more accountability to the public. But prime ministers aren’t really accountable to anyone but their own party. Sure, the stakes are lower for the party (in that they get to toss him, annoint anew, and wash their hands of the problem). But how often is the british PM tossed?

    3. Presidents should be free to not enforce a substantive law. Less law nearly invariably means fewer constraints on liberty. Why get all bent out of shape about a government not throwing someone in jail or taking their money? In the case of federal criminal law, this will almost always concern some made-up victimless crime (or a crime that ought not be the concern of a government with no general police power). It’s a little different when you’re talking about appropriations or entitlements, but most of your complaints are against the nonenforcement of substantive, prohibitive laws.

  2. nobody.really says

    The executive has a lot of discretion regarding the degree of effort to expend enforcing any given law. That said —

    1) Congress presumably has a similar power to refrain from acting. If Congress repealed the Federal Communications Commission’s authorizing statute, or passed a law saying that the US will expend no funds on the work of the FCC, I don’t see any legal grounds for get around that. Sure, the executive might do so nevertheless — Congress told Reagan to knock off his war in Central America, yet he persisted — but there would be no figleaf of legality.

    2) Congress can appropriate funds for OTHER entities to do things. Thus, a statute saying, “The US shall build a rocket to fly to Mars” might get stuck in administrative gridlock. But it’s unclear how much discretion the executive could wield to frustrate a statute saying, “We appropriate $100 million to U. Texas at Austin to build a rocket to fly to Mars. ” And a statute saying “The first person to reach Mars shall be entitled to $100 million from the US Treasury” would create a legal claim on the part of the first person reaching Mars which would be enforceable via the courts, not the executive.

    3) If Congress were sufficiently vexed with the executive, presumably Congress could starve it. Even if there were some lower bound beyond which Congress could not de-fund the Executive Branch without violating the Constitution, I suspect we’re very far from that point. I suspect the executive would want to reach some accommodation with Congress eventually. (Of course, de-funding the Executive Branch would exacerbate the problems of non-enforcement initially….)

    • gabe says

      I vote for Door #3! but would be willing to accept Door#2 if that was the door for the Black robes!

  3. caniacsteve says

    As we have all known now for over 100 years we, the people have gotten the short end of the stick politically from the US Federal in one form or another from both the legislative & executive branches. But and since the attacks on the twin towers on sept.11,2001 the progressive side of BOTH Major parties have “ginned” up as it were more and more restrictions,more and more abuses and over-reaching since (as many would claim) Lincoln during the civil war.We,the voters have tried to, via the ballot box put in place a government that had “some semblance” of what the Founding Father’s had put into place. Yet almost from the start there have been people,parties with different ideas/ideologies & intent to do away with what has worked better than most of all other global governments have been in the last 230 odd years. When asked “what did you give us ? Ben Franklin( i do believe) replied..”A Constitutional Republic..If you can keep it ” . sadly do to the lack of moral,ethical behaviors & political thuggery from Political Progressives,We,the people,seeing we have no legal standing in or with in the federal courts to push back are seeing The Constitutional Republic slipping away from us a wee bit more each and every election cycle and session of congress.Yet and IF we organize & arm ourselves we get investigated,bullied by FBI,IRS,DOJ,OSHA & our local State & local enforcement agencies because we have the gall to dare question them and their intentions. Short of an armed insurrection like what is going on in Europe & middle-east,What is left to the ever shrinking blue collar middle class family to do ?

  4. JoYo says

    After 14 or so years of living under President Franklin Roosevelt, America amended our Constitution to limit the number of terms future Presidents could serve. After Obama, we need Congress to pass another amendment that provides a mechanism that forces Congress to impeach a President that unilaterally changes laws that Congress passes, refuses to enforce Laws passed by Congress; or legislates via Executive Orders or the regulatory agencies. This could be focus on more than one level — (1) no pay for the president or Congress until the President is impeached; (2) 3/4 of the state legislatures can vote for the impeachment and then forward to Congress for the final ratification; (3) all unconstitutional rules and regulations generated by the President are automatically cancelled with no action required by Congress upon his impeachment.

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