The Judicial Role in Constraining Presidential Nonenforcement Discretion: The Virtues of an APA Approach

39 Pages Posted: 19 Nov 2016 Last revised: 15 Oct 2017

See all articles by Daniel Walters

Daniel Walters

University of Pennsylvania Law School; University of Wisconsin - Madison

Date Written: 2016


Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and do constrain presidential nonenforcement discretion, and that they are far better situated to do so when they operate under the rubric of conventional administrative law. Often caricatured as categorically deferential to questions of enforcement discretion, the law of agency inaction is in fact nimble enough to constrain the most egregious instances of executive overreach in nonenforcement, and unique doctrinal features, such as the doctrine of finality, give courts a safety valve to control strains on judicial capacity.

Keywords: Administrative law, constitutional law, executive power, agency enforcement discretion, federal courts, Heckler v. Chaney, Presidency, separation of powers

Suggested Citation

Walters, Daniel, The Judicial Role in Constraining Presidential Nonenforcement Discretion: The Virtues of an APA Approach (2016). University of Pennsylvania Law Review, Vol. 164, Pg. 1911, 2016; U of Penn Law School, Public Law Research Paper No. 16-44. Available at SSRN:

Daniel Walters (Contact Author)

University of Pennsylvania Law School ( email )

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Philadelphia, PA 19104
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University of Wisconsin - Madison ( email )

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Madison, WI 53706-1481
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