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Two recent examples come to mind:

  1. Not enforcing the company mandate of the Affordable Care Act (a.k.a. Obamacare)
  2. Not enforcing existing immigration laws

I'm sure there are other examples from history (and would be interested to hear them), but what legal basis does a President (and the administration) have for not enforcing existing laws?

Note: I am not asking about a decision to not defend an existing law (e.g., DOMA), but specifically about not enforcing existing law.

  • Interesting question. I assume that it's like any law enforcement entity in that it often comes down to individual discretion. – user1530 Jul 3 '13 at 16:33
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    According to the Supreme court's recent decision regarding prop 8 it does not matter since is we do not have standing to bring a case against an administration for failure to enforce laws. Basically means whenever the Executive branch decides not to enforce the law. – SoylentGray Jul 3 '13 at 17:12
  • @Chad, good point. Does their decision apply only to state executive branches or to the federal executive branch too? – mikeazo Jul 3 '13 at 17:13
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    @Chad, I'm not sure you are correct. The ruling states "respondents no longer had any injury to redress, and the state officials chose not to appeal" and that is why they had no standing. So if the respondents did have legal standing, the case would not have been thrown out. So, the ruling (or lack there of) only applies when respondents don't have legal standing. – mikeazo Jul 3 '13 at 17:25
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    What @mikeazo said. You can't sue "because they didn't do their duty". You can sue because "they didn't do it and as a result an illegal immigrant did this provable material damage to me due to his status as illegal". – user4012 Jul 3 '13 at 18:41
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The only formal argument I've been able to find argues that a President has the authority to decline to execute statutes which he/she believes to be unconstitutional.

See PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES where the author gives some justification for this (note: I originally found this on justice.gov, but the link wasn't working any more):

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional."

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In theory failure to uphold the oath of office to "faithfully execute the Office of President of the United States" could be considered a high crime and lead to articles of impeachment, and impeachment in the Senate as proscribed in Article II of the US Consitution.

But that would require congress to take action on the failure. Even if the Senate wanted to impeach the president over the issue, it requires the House to first present the articles. In this case there is no political will to attempt and likely fail to impeach.

  • The usual terminology is that the house impeaches the president (by passing articles) and the Senate then tries the impeached official and possibly convicts. So Clinton was impeached and tried but not convicted. Another point: exercise of executive discretion isn't necessarily unfaithful to the oath of office, so that would likely be a hot topic of discussion at the impeachment hearings and any subsequent trial. – phoog Sep 8 '18 at 18:30
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The Take Care Clause demands that the president obeys the law, the Supreme Court said in Humphrey's Executor v. United States, and repudiates any notion that the president may dispense with the law's execution.

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.

It's pretty clear he can't do what he's done. Watch Obama explain that he can't do it on this video interview with Anderson Cooper

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Any time it wants to. Not enforcing the law is just another way of say no one is tasked with enforcing the law. And it is the executive branch which does such tasking. And it was intended that way from the beginning. If Congress doesn’t like how the country is being managed, they can fire the President.

To give a serious example: only Congress can declare war, only the President can direct the troops to fight, and he doesn’t need a declaration of war to do so. Congress can control how much money he has available to fight, but can’t tell a single soldier “shoot”.

Legally, the balance of power between the three branches favor’s Congress. Neither the President or any of the Justices can fire a single Congressman, they can’t legally even prevent them from exercising their power.

Police are not even required to protect people: https://law.stackexchange.com/questions/23539/are-police-legally-required-to-stop-a-crime-they-see-being-committed

The idea that the President is legally obligated to enforce the law is just silly - in order for it to mean something, it would require creating law enforcement and prosecutors and judges that are not under Presidential control. It would also pretty quickly end with the President and executive branch totally under the thumb of Congress, as anyone that objected would be arrested and convicted for not giving enough priority to whatever.

Congressional Investigator: Special Agent Jane didn’t respond to a report that someone had violated USC §1011(f) & 36 CFR §261.4(b) (which makes it a crime to say something so annoying to someone that it makes them hit you in a national forest.)
Congressional Prosecutor: On the date in question did you respond to an alleged violation of USC §1011(f) & 36 CFR §261.4(b) in Yellowstone Park?
Jane: No, I was 2500 miles away raiding a terrorist cell that planned to use a dirty bomb to wipe out Miami.
Congressional Judge: Guilty. 20 years to life.
Congressman: when I say wash my car, was my car.
President: Hey, I personally told the director of the FBI to make taking down that cell a top priority after it was reported to me.
Congressman: wash my car...

  • The war example may be analogous but it's less directly applicable to a question about enforcing the law than would be a discussion of prosecutorial discretion. In both cases, though, the president has discretion to make cost/benefit analyses about the allocation of resources. – phoog Sep 8 '18 at 18:35
  • Do you have any references to show that this is more than just your opinion? – mikeazo Sep 8 '18 at 23:15
  • @phoog: but they aren’t analogous, they are in fact identical. If Congress could micromanage the executive branch, it wouldn’t be the executive branch, it would be the congressional staff. – jmoreno Sep 8 '18 at 23:50
  • @jmoreno engaging in war does not constitute "enforcing the law." – phoog Sep 9 '18 at 1:01
  • @mikeazo: which part? Fire the President? Congresses inability to say shoot? Illegal to prevent a congressman from going to the hill and voting? President can’t fire Congressman or Justice? Most of it is basic US civics. – jmoreno Sep 9 '18 at 1:05

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