Faithful Execution and Enforcement Discretion
48 Pages Posted: 20 Apr 2017
Date Written: 2016
In November 2014, President Obama announced a significant turn in U.S. immigration policy: that immigration officials would decline to pursue deportation of unlawful immigrants who were parents of U.S. citizens or lawful permanent residents and who met certain other criteria. Although the proposed program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), never took effect, it provides a fascinating lens for exploring what limits, if any, the Constitution imposes on the executive branch’s decision not to enforce the law — on its exercise of administrative “enforcement discretion.” Article II of Constitution obligates the President to “take Care that the Laws be faithfully executed.” The Faithful Execution Clause frames two aspects of the debate over the scope of administrative enforcement discretion. First, one can view the clause as discretion-granting: in conferring or recognizing the President’s power to “execute[” the law, the clause seemingly embeds some flexibility to decide when and how to exercise that power. Second, one can view the clause as discretion-limiting: the clause calls for the President not merely to ensure that the laws be executed, but that they be “faithfully” executed. When the Obama administration announced its DAPA initiative, the Department of Justice’s Office of Legal Counsel (OLC) issued a lengthy opinion that developed and applied a framework for determining when an exercise of enforcement authority breaches the Executive’s constitutional obligations of faithful execution. That framework embeds certain immigration-specific elements, but its potential relevance transcends the immigration context. It is worth asking, then, both what the Faithful Execution Clause means and whether the OLC framework properly measures and constrains the scope of administrative enforcement discretion. The Faithful Execution Clause, this Article argues, has not and likely will not prove decisive in disputes in court over the scope of administrative enforcement discretion. That is not, however, because the Faithful Execution Clause does not constrain executive conduct. The clause demands that the President ensure that his subordinates act in good faith in enforcing the law. Whether the clause itself imposes a duty of good faith on the President’s subordinates is a complicated question. Even if it does not impose such a duty, the clause necessarily requires that the President have the tools to do so. This understanding of the Faithful Execution Clause calls into question certain aspects of OLC’s framework for evaluating exercises of administrative enforcement discretion. The Faithful Execution Clause, this Article argues, demands that the executive branch impose greater constraints on that discretion than the OLC framework recognizes.
Keywords: administrative enforcement discretion, Take Care Clause, Faithful Execution Clause
JEL Classification: K23, K37, K42
Suggested Citation: Suggested Citation