The President and Choices Not to Enforce

Abstract

This paper was one of a number given in a panel on executive authority in a Duke Law School conference, Constitution Under Clinton: A Critical Assessment. As its title suggests, the principal subject of the panel was the President's authority, if any, to decline to implement statutes he regards as unconstitutional. The lead paper on the panel focused specifically on questions of the scope of the President's authority to engage in constitutional interpretation, relating that analysis to the role of the courts and their institutional responsibilities for deciding constitutional issues. This paper seeks to place this set of issues into a broader context of executive authority to prioritize in law enforcement. That is, executive authorities may decline to enforce particular statutes on the books in many contexts, independent of constitutional considerations -- because of resource constraints, because intervening developments render the statutes obsolete or inconsistent with other elements of the legal order, and so forth. Moreoever, the President's oath of office, an undertaking to preserve, protect and defend the Constitution of the United States, subsumes the proposition that the Constitution is among the laws whose faithful execution he is to assure. The suggested analysis draws on Justice Jackson's tripartite construction in Youngstown Sheet & Tube v. Sawyer: where the President would have to conclude that courts would find congressional authority to make judgments about constitutionality at its maximum, his own capacity for choosing not to enforce is essentially limited to the ordinary executive considerations such as prioritization; where its actions are unmistakably incompatible with the Constitution, as currently understood in judicial doctrine, his oath commands giving the Constitution preference; and in a zone of twilight, where the Constitution and judicial readings are unclear, he may rely on his reading of the Constitution (as well as on the more normal factors) until that reading has been overtaken by judicial decision.