Presidential Inaction and the Separation of Powers

Abstract:     
Imagine two Presidents. The first campaigned on an issue that requires him to expand the role of the federal government - maybe it was civil rights legislation, or the criminalization of abortion. The second President pushes policies - financial deregulation, perhaps, or marijuana decriminalization - that instead mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance that agenda. The question that remains is what steps each must take to achieve those goals. The answer is clear, and it is surprising. To implement his preferred policies, the first President must push for new laws or extend the reach of existing administrative agencies. In either case, he will need the approval of the other branches. Conversely, to get the federal government out of a particular issue, the second President needs only to ensure that existing laws are not implemented. Critically, she can achieve that goal without the usual battle with Congress or the courts; she can simply direct her agencies accordingly. Whereas the first President cannot act alone, the second is free to engage in what amounts to unilateral policymaking through inaction.

It wasn’t supposed to be this way. James Madison famously articulated a functional account of our governmental structure that would use overlapping authority to prevent any single branch from making policy unilaterally. No doubt Madison and the other Federalists had in mind unilateral policymaking by action, rather than inaction. After all, the principle concern in Madison’s day was a Congress run amok. But the core principle at play admits of no such restriction. In the modern administrative state, the President’s refusal to enforce duly enacted statutes - what we call “presidential inaction” - will often dictate national policy and yet will receive virtually none of Madison’s checks and balances. This asymmetry between action and inaction cannot be justified if we are to be faithful to Madison’s notion that inter-branch competition is the core virtue of our constitutional regime.

Refocusing separation of powers theory to account for inaction - and recognizing the shortcomings of the Executive’s coordinate branches - illuminates a structural asymmetry in the constitutional scheme: the failure of Congress and the courts to police inaction will inevitably bias outcomes toward less government intervention than the enacting Congresses (and the Presidents who signed the impugned provisions into law) intended, and thus less than the Constitution requires. The relative institutional capacities of the various players make the solution clear: our approach would call on Congress to assume the role of robust adversary to the President, a role it can play far better than the courts can. Moreover, it would offer new insights on old problems, from statutory interpretation to federalism.

Number of Pages in PDF File: 52

Keywords: constitutional law, separation of powers, administrative law, statutory interpretation, congress, federalist, James Madison

Accepted Paper Series