Executive Action and Nonaction

Abstract

Action by the executive can be challenged by a party with standing, and there is usually no shortage of such parties. The executive’s failure to act, however, is much more difficult to submit to judicial scrutiny. I propose that standards for reviewing such nonaction are available under precedent of the Administrative Procedure Act, and under severability analysis. That is, a reviewing court can determine whether the executive’s failure to enforce part of a law leaves the rest of the law to operate meaningfully as Congress intended (akin to severability analysis), and APA precedent can guide courts to determine whether nonaction was “not in accordance with law.” Where the beneficiary of executive action is clearly identifiable, such a party should have standing to criticize nonaction. Where not, the legislature as an institution should have standing. A remedy is difficult to craft in the context of nonaction, so declaratory relief may be the best that can be achieved, but it is still potentially valuable. Presented with a determination by the third branch that it has failed to see that the laws are faithfully enforced, the second branch might reverse its course and begin to enforce a law. If not, impeachment for nonaction could be the ultimate remedy. A judicial determination that any constitutional reasons for nonaction are invalid would assist the House in its impeachment function, even if no impeachment motion is actually brought: just as legislative bodies’ oversight functions can be assisted by a court enforcing a subpoena for relevant evidence of executive behavior, as part of the legislative branch’s oversight power, even in the absence of a specific piece of legislation that results. The Court’s decision last term in Arizona Redistricting Commission has revived the doctrine of legislative standing, increasing the likelihood that a declaratory judgment action brought by the legislature against the executive for nonaction would be held justiciable. Recent examples of executive nonaction are: President Obama’s decision not to deport categories of individuals and (though too recent to be included in this article) President Trump’s decision not to collect the Affordable Care Act tax from individuals who did not obtain health insurance as required under that Act.

Keywords: Executive authority, Congressional authority, Standing, Separation of Powers, Political Question, Legislators’ lawsuits