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Nonenforcement by Accretion: The Logan Act and the Take Care Clause

69 Pages Posted: 30 Jan 2017 Last revised: 17 Sep 2017

Daniel B. Rice

Georgetown University Law Center

Date Written: July 25, 2017

Abstract

The Logan Act is a centuries-old law designed to bolster executive power. Yet Presidents have uniformly declined to don the statute’s vintage armor. Countless enforcement opportunities have yielded precisely zero prosecutions; the Act has ceased to function as law in any meaningful sense. A recent resurgence in Take Care Clause scholarship has overlooked this unparalleled passivity. Scholars agree that although Presidents may not refuse to enforce statutes on policy grounds, exercising prosecutorial discretion on a case-by-case basis is perfectly permissible. The Logan Act’s slow demise offers an important caveat: that laws can be nullified through the repeated use of individualized enforcement discretion. I call this previously unexplored phenomenon "nonenforcement by accretion."

This Article contends that the gradual erasure of an entire statute presents a far greater threat to legislative policymaking supremacy than does the advance signaling of cabined enforcement priorities. I highlight the problem’s magnitude by chronicling Presidents’ refusal to remedy even archetypal Logan Act violations in the face of deafening enforcement demands. I then identify several forces driving the statute’s deterioration. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests. In doing so, it unsettles the traditional distinction between policy-based nonenforcement and that anchored in constitutional objections. Finally, the piece argues that failing to enforce the Logan Act — a law that modern majorities would never enact — has in fact thwarted long-term democratic responsiveness.

Keywords: Logan Act, Take Care Clause, executive power, nonenforcement, diplomacy, foreign relations, Article II, separation of powers

JEL Classification: K39

Suggested Citation

Rice, Daniel B., Nonenforcement by Accretion: The Logan Act and the Take Care Clause (July 25, 2017). Harvard Journal on Legislation, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2907523

Daniel Rice (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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