86 Pages Posted: 30 Jan 2017
Date Written: January 28, 2017
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 — even accidental — erasure of an entire statute presents a far greater threat to the idea of 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 mutually reinforcing imperatives that vastly overdetermine the statute’s spectacular torpor. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests; when each administration remains inert for its own reasons, it is not obvious whether a law has been gutted because of policy differences, constitutional objections, or otherwise. The piece concludes by arguing that executive efforts to channel modern majorities — as by neglecting to enforce outmoded laws — can in fact thwart 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: Suggested Citation
Rice, Daniel B., Nonenforcement by Accretion: The Logan Act and the Take Care Clause (January 28, 2017). Available at SSRN: https://ssrn.com/abstract=2907523