Politics of Nonenforcement

Abstract

Constitutional controversies over executive nonenforcement have emerged as a major theme of the Obama Presidency. Yet similar controversies arose in other recent administrations — and in past debates, the two political parties’ positions on this issue were often reversed. Building on previous work addressing constitutional principles that properly govern executive enforcement discretion, this brief symposium contribution reflects on these principles in light of our current, highly polarized politics. It does so in three ways. First, Part I provides historical perspective on current debates by describing major enforcement-related controversies from the Reagan and George W. Bush Administrations. Second, Part II proposes criteria for assessing how faithful an agency’s enforcement policy is to the agency’s underlying statutory mandate. As Part II explains, several qualities — most importantly, transparency and clarity — that are generally considered virtues in administrative law are often counterproductive in the enforcement context. Finally, Part III tentatively explores possible practical, political implications of weakening norms of executive enforcement obligation.