Faithful Nonexecution

66 Pages Posted: 31 Jul 2015 Last revised: 7 Feb 2019

See all articles by Peter M. Shane

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law

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Date Written: February 5, 2019

Abstract

Decisions by the federal executive branch to under-enforce statutes, whether on a case-by-case or programmatic basis, are a commonplace feature of the modern administrative state. Critics may challenge “nonexecution” decisions in court or otherwise as inconsistent with the President’s constitutional duty to “take care that the laws be faithfully executed.” Such decisions, however, are most helpfully viewed not as instances of the executive’s failure to act, but rather as part and parcel of an agency’s affirmative strategies for implementing its statutory mandates. As such, their legality is appropriately judged not under the terms of Article II, but rather according to the scope of enforcement discretion that Congress has explicitly or implicitly delegated to the agency by statute. In other words, these are statutory, not constitutional disputes, and are subject to ordinary administrative law principles.

Following this framework, courts should not treat the Faithful Execution Clause as itself expanding the scope of statutory discretion conferred on the executive branch by statute in either civil or criminal contexts. The controversies that genuinely raise constitutional issues of faithful execution fall into two categories: cases like Youngstown in which the President asserts that the Take Care Clause confers administrative powers beyond those conferred by statute and episodes in which the President is accused of intentionally undermining the ability of the executive branch to function effectively. The latter episodes, however, will all-but-inevitably take the form of alleged acts of an informal character that do not present justiciable controversies. Whether alleged instances of self-sabotage contravene the President’s faithful execution duty will be a matter for congressional and public judgment.

Suggested Citation

Shane, Peter M., Faithful Nonexecution (February 5, 2019). Ohio State Public Law Working Paper No. 300, Available at SSRN: https://ssrn.com/abstract=2637827 or http://dx.doi.org/10.2139/ssrn.2637827

Peter M. Shane (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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