Scott Sumner  

When does executive enforcement discretion spill over into lawmaking?

Trump's Immigration Policies: ... Trump's Toothless Pipeline Pro...

If a President pardons a single individual for violations of the law, it's generally viewed as a legitimate act, within the President's authority. People might view the pardon as unwise, but they generally don't argue that the act was unconstitutional. But suppose a President pardons everyone who violates a specific law? Has the President overstepped his power, and effectively engaged in rewriting the nations laws? I honestly don't have strong views, so I'll present both sides of the issue, relying on people with much more judicial experience. First, Judge Andrew Napolitano, discussing President Trump's recent executive order:

Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (ObamaCare) in ways that are revolutionary.

With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor's administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it? . . .

He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?

Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government's laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of ObamaCare. It is utterly without precedent since Jefferson's presidency.

Trump's revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit -- that they can be and have been wrong. It is exactly as Trump promised.

For a contrary view, consider Judge Andrew Napolitano's discussion of President Obama's decision to stop enforcing immigration laws:

A draft memo obtained by Fox News reveals proposals for executive actions on immigration reform that could be announced by President Obama as early as next week.

As part of the 10-point plan, up to 4.5 million illegal immigrants living with their American born kids would be allowed to stay in the U.S., an expansion of deferred action. The plan would also expand deferred action for DACA children. There is also a proposal to raise pay for ICE officers to boost morale. . . .

Judge Andrew Napolitano said on "Fox and Friends" he "hates" the proposal, regardless of whether it is the "humane" thing to do for illegal immigrants in the United States. He explained that it comes down to the president trying to "rewrite" the law to allow immigrants to stay in the country.

"Under the Constitution, only the Congress can rewrite the law. So you have the president rewriting the law and failing to comply with his oath. What does that equal? That equals serious violations of the Constitution. That equals offenses that rise to the level of impeachability," said Napolitano, adding that he doesn't think it would be politically wise for Republicans to pursue impeachment and doesn't think they will.

So which is it? Can presidents effectively rewrite laws by failing to enforce them, as Napolitano claims? Or not, as claimed by Napolitano?

And are you as confused as I am?

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PS. I have one request of commenters. If commenting on these two executive actions, please tell me something about your personal political preferences (i.e. lean Dem or GOP, etc.) But I'd prefer comments on the principles involved, without any reference to these two executive actions. Thanks.

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CATEGORIES: Law and Economics

COMMENTS (17 to date)
MikeP writes:

To be fair, the president in one case was acting against the clear will of Congress, while the president in the other is acting with the clear will of Congress.

So one is a realization that the president is trying to thwart the law-making power of Congress, while the other is a realization that the president is trying to minimize dislocation to people in an interim before the law-making power of Congress is exercised.

Personal political preferences: Staunch libertarian. Find Donald Trump and the mirror he aimed on the American electorate despicable. Beyond all priors, find liberals in their reaction to Trump even more despicable.

Mr. Econotarian writes:

Great analysis here:!/articles/2/essays/98/take-care-clause

"Under the Take Care Clause, however, the President must exercise his law-execution power to "take Care that the Laws be faithfully executed."

"When an appropriation provides discretion, the President can gauge when and how appropriated moneys can be spent most efficiently. However, the President may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon him by Congress. Marbury v. Madison (1803); Kendall v. United States ex rel. Stokes (1838). Nor may the President take an action not authorized either by the Constitution or by a lawful statute. Youngstown Sheet & Tube Co. v. Sawyer (1952). Finally, the President may not refuse to enforce a constitutional law, or "cancel" certain appropriations, for that would amount to an extra-constitutional veto or suspension power."

Matthias Görgens writes:

As an unAmerican I have no strong opinions on what your president can or should do.

But I do want to express how much I liked your picking the same person for the two opposing points for view!

Daniel Hill writes:

@MikeP - the Constitution doesn't say anything about the President enforcing what he thinks the law is going to be, only what the law is. Until Congress changes the law, the current will of Congress is whatever the law says. What Trump ought to have done if his real concern is avoiding dislocation and not winning political points, is to encourage Congress to hurry up and change the law if that is their intent.

@Scott Sumner - "I'd prefer comments on the principles involved" Be nice if there were principles at work rather than just people rationalizing the positions and decisions of their political tribe.

David S writes:

Libertarian/Republican mix.

I think that the President should not be allowed to usurp power in this way. However, I do believe in the "tit for tat" solution to the prisoners dilemma. So I think that Trump should be allowed to go just as far as Obama did, until Democrats remember how nice the rule of law was.

If you let the other guy walk all over you when they are in power and then you self-limit your response when you are in power, you will not have any impact on the governing of your country.

George writes:

I interpret Napolitano to be approving of and remarking about the intent of Trump's executive order. Namely, the idea that that the Executive "implementation should should exercise discretion in favor of individuals and against the government."

He didn't expect that part.

He is still against this executive order though.
"How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it? . . ."

Whether or not these executive orders are humane or good has no bearing. In both situations he is against them on procedural grounds.

Libertarian btw

Scott Sumner writes:

MikeP, Thanks for the comment, and the explanation of your views. My only comment would be that the filibuster rule in the Senate (which I oppose) makes the will of Congress a bit tougher to ascertain than we might assume--but I see your point.

Mr. Econotarian, Thanks. That seems to suggest both Presidents overstepped their authority.

Thanks Matthias.

Daniel, Good point.

David, I'm not a big fan of tit-for-tat as a constitutional principle, but I see your point.

George, That's interesting, I got the impression that Napolitano supported Trump's action. What do others think? You might be right, but the way he ends up the article seems awful laudatory. (No talk of Trump deserving impeachment.)

Rich Berger writes:

Seems simple. Trump is allowing discretion as allowed under regulations and deferring actions based on an intended law change. Obama was pretending that a law that wasn't passed or would be passed exists.

Thomas Sewell writes:

Adler has a good discussion of these issues from a legal standpoint with pointers to additional commentary.

From a practical perspective... as noted, the people who might complain about the Trump Administration granting waivers and delays on enforcement would have a tough time politically because of how many waivers and delays Obama previously granted, even if there is a legal case to be made against many of them. One of the arguments brought up when portions of the ACA were delayed illegally was that if it was allowed to stand as a precedent, a future President could just delay enforcement forever using the same process.

From a principled right-leaning libertarian perspective (pro-immigration, among other things), it comes down to what the law combined with the Constitution actually says. If the law grants the President the authority to waive something arbitrarily (and parts of the ACA do), then it's tough to complain how he chooses to exercise that ability. That applies if it's the ACA or illegal immigration enforcement. If the law doesn't include authority to waive a portion (and in many cases for Obama at least, with the ACA, the law didn't) and the President stops enforcing it, then unless there is a Constitutional override which applies, he's just failing to enforce the law.

The main principle involved if Congress wants to learn something for the future is to stop delegating so much power to the President and agencies when they're writing laws. That would solve a lot of the sudden changes in enforcement when the discretion of the President suddenly changes when the President does.

From a pardon power perspective, neither the ACA nor illegal immigration are generally criminal matters, so neither of them relates to the Presidential pardon power. The President can pardon individuals or the entire world if he wants for a federal criminal offense (to the point where a President could announce he is pardoning everyone who violated a particular federal criminal law), but if the IRS comes after you for taxes, he can't "pardon" you so you don't owe anymore. That would have to come via a different power/legal remedy in the law.

The illegal immigrant claim (still in the courts) was that the President could order federal prosecutors to prioritize and exercise prosecutorial discretion to not bring civil deportation proceedings against groups of individuals. Most Judges so far think that's correct, but when he also tried to add new rules and documentation not provided for in the law (creating a new immigration status with id cards, etc...) he went too far in actually creating new law, not in just using prosecutorial discretion.

The ACA doesn't have criminal penalties for failing to comply, so the pardon power doesn't operate. It does, however, have some pretty big waiver powers included in it, and a ton of things to be decided by the executive branch as regulation details. All of those are fair game for the normal executive agency type of actions.

BZ writes:

What if the law is, in the judgement of the President, unconstitutional? He swore to execute the laws, but he also swore to uphold the constitution, and an unconstitutional law is not a law for the purpose of unholding.

One of the beautiful things about the separation of powers is that 3 different branches all have to agree that an act is legal before anyone gets hurt: congress, the judiciary, and the executive. Saying that one of those three has to "stay out of it" seems to miss the point of the whole separation of powers thing.

Andrew_FL writes:

One law is Constitutional and the other is not.

The President would not be taking care that the laws of the United States are faithfully executed if he ignored the fact that the Constitution disallows a statute and that the Constitution is the supreme law of the land.

If Congress passed a law that blatantly outlawed a form of protected speech, and a narrow majority of the Supreme Court wrongly concluded that was permissible on the theory that duly elected majorities can do whatever they please, would you say the President has a duty to enforce such a law, or a duty to enforce the 1st Amendment against that law?

This libertarian agrees with BZ.

My spotty education in the intent of the founders suggests they feared the force of government-decreed law (the best and most important law has other sources). For that reason, they divided the powers necessary to create and enforce new decrees among the three branches. A new decree falls with full force on the people only if all three branches act their part in the enforcement. Waffling on the part of any of the three lessens the damage done. The ambiguity noted by Scott was the founders' intent, I propose.

Philo writes:

Congress and the Supreme Court provide the checks on the President's authority/power. Congress can impeach and convict, the Court can overrule. But I see no *principle* involved: it's just a question of how much those two other branches of government will tolerate. (I don't think my general political views are relevant.)

AlanG writes:

Politics: Dem who has voted for a Republican five times in 45 years! that being said, I am no fan of executive over reach. But the fault lies with Congress who pass laws that are vague, allowing executive agencies to go beyond their scope through rulemaking. The courts have usually sided with the executive because of this. Additionally, Congress does a very poor job of oversight instead spending way too much time on issues that may achieve short term political gain (Libya, HRC's emails, almost anything done by Cong Chafetz, oversight of DC's attempts at self-governance, etc.). Had they spent this time on good solid oversight of the Executive agencies and then formulated some good remedial legislative changes we would all be better off.

Like everything in life, there are choices. For too many years, Congress has made the wrong ones.

Foobarista writes:

The de facto situation is that Obama - and Trump - realize that the only formal check on their authority to make such orders is Congressional impeachment. It's that whole "pen and phone" thing...

No Congress was going to impeach the First Black President, and a Republican Congress won't impeach Trump.

Jon Daly writes:

Obama claimed the power to exercise discretion in enforcing both laws, immigration and healthcare.

Trump is exercising discretion on only one expressly advocates it.

And is insisting on the enforcement of the other...immigration...which requires it.

Seems simple to me

I am a conservative.

Nick writes:


The extent to which an executive action is lawful (in a legal positivist sense) is highly contextual, both with respect to the content of the order and the legislation it is ordered pursuant to; at least from a theoretical standpoint. For example, if Congress is quite narrow in its legislative actions, then the executive has very little he can do to "re-write" the laws. HOWEVER, given that most laws are objectively vague (intentionally or not), and given that Congress has passed an abundance of laws on every topic imaginable, nearly any executive action can be viewed as "legal". After all, it is quite difficult to "re-write" a law that does not have an objectively fixed meaning. An executive order may alter the current interpretation, but it does not "re-write" the law in violation of our Constitutional norms.

This is arguably the normative failure of legal positivism. Fixed meaning from a diverse legislature is an impossibility, so administrative law subsumes the Congress. That may or may not be good, but it is a normative failure if one adheres to notions of legislative primacy.

What really happens (for the more difficult questions of law--not when the law clearly says Y and the executive order says not Y) , is that judges impose a political theory into whether the executive action is an appropriate step for the executive to take. All of the ammunition in terms of legal reasoning exists to reach either conclusion. Over a long enough time frame, the political views of the federal judiciary can change as elections are won or lost--but in the short-run, we are bound to the political views/morals/party affiliation of the judges in power.

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