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Journal Article

Enforcement Discretion and Executive Duty

01 Jan 2014-Vanderbilt Law Review-Vol. 67, Iss: 3, pp 671
TL;DR: In this article, the authors examine the proper scope of, and constitutional basis for, this putative executive authority and conclude that it is both limited and defeasible to enforce civil and criminal prohibitions in particular cases.
Abstract: Recent Presidents have claimed wide-­ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion the authority to turn a blind eye to legal violations may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This Article fills that gap. Through close examination of the text, structure, and normative underpinnings, as well as relevant historical practice, this Article demonstrates that constitutional authority for enforcement discretion exists but it is both limited and defeasible. Presidents may properly decline to enforce civil and criminal prohibitions in particular cases, notwithstanding

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Citations
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Journal ArticleDOI
TL;DR: An overview of the changing US epidemiology of cannabis use and associated problems suggests national increases in cannabis potency, prenatal and unintentional childhood exposure; and in adults, increased use, CUD, cannabis-related emergency room visits, and fatal vehicle crashes.

405 citations

Journal ArticleDOI
TL;DR: In this article, the authors defend the relevance of constitutional principles to baseline understandings of nonenforcement authority and identify a deep tension in the rule of law's implications for discretionary enforcement.
Abstract: Recent controversies have called attention to the potential significance of negative executive authority—the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.

25 citations

Book ChapterDOI
01 Jan 2019
TL;DR: In this paper, the authors apply Bucar's system theory in developing some recommendations how to deal with non-enforcement of laws legally and politically in the United States, and they synthesize both legal traditions and thus, enable a profound analysis of the topic as well as deduction of prescriptive measures.
Abstract: Nonenforcement of legal rules is increasingly becoming a political strategy of (de)regulation and reform implementation. European legal tradition sees nonenforcement as a fact outside of its scope, a sort of political anomaly. However, American tradition lacks substantive theoretical framework for analyzing nonenforcement; therefore, normative arguments are difficult to flow from it. As such, the article applies Bucar’s system theory in developing some recommendations how to deal with nonenforcement of laws legally and politically. Bucar’s system theory synthesizes both legal traditions and thus, enables a profound analysis of the topic as well as deduction of prescriptive measures.

7 citations

Journal ArticleDOI
TL;DR: The authors examines the broad logic of those efforts, and delineates five areas where the Obama administration has been particularly aggressive: in its (1) recess appoint- ments; (2) refusal to defend federal law (notably, the Defense of Marriage Act) in court; (3) use of prosecutorial discretion in declining to pursue violations of immigration and drug laws; (4) useof waivers; and (5) utilization of the regula- tory process to interpret the meaning of statutes, as with the Clean Air Act and the Affordable Care Act.
Abstract: In his 2014 State of the Union address Barack Obama pledged to act without Congress on a variety of fronts, following up his "we can't wait" cam- paign of unilateralism before the 2012 election. The partisan furor this engen- dered tended to obscure the longstanding efforts of presidents to "faithfully execute" the law in a manner that aligns with their policy preferences. This paper examines the broad logic of those efforts, and delineates five areas where the Obama administration has been particularly aggressive: in its (1) recess appoint- ments; (2) refusal to defend federal law (notably, the Defense of Marriage Act) in court; (3) use of prosecutorial discretion in declining to pursue violations of immigration and drug laws; (4) use of waivers; and (5) its utilization of the regula- tory process to interpret the meaning of statutes, as with the Clean Air Act and the Affordable Care Act. Presidents do have flexibility in many cases; but this ends where they seek to alter the plain "letter of the law."

5 citations