Presidents Can — Must — Choose Which Laws to Enforce


With Republicans still throwing a fit over President Obama’s executive order of a few years ago that put the focus on undocumented immigrants who committed crimes rather than on law-abiding kids who were brought here by their parents, Eric Posner points out that presidents not only can choose which laws to enforce in which way, but they must do so.

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints. The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America’s founders rejected.

This is not an unlimited power, of course, and there are many ways in which this could be done that would be inherently unfair. We see the dangers of selective enforcement of the law in the clearly racist enforcement of our drug laws all over the country. But sometimes it’s entirely legitimate and necessary, as it is with the IRS auditing wealthier taxpayers more often than the average person.

And yes, as it is with the decision to focus the attention of the INS and other federal agencies on law-breaking immigrants rather than law-abiding ones. We aren’t going to round up 8-11 million people and deport them, nor should we. Our concern should be for those who endanger others, not those who are here merely to help their families and escape poverty.

Comments

  1. Chiroptera says

    The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment.

    I may have been taught wrong, but when I was a wee lad, I was told that this was the point of the whole separation of powers powers. The Executive’s independent mandate to execute the laws is supposed to be a check on the power of the Legislature: the Legislature may pass an unjust (or unconstitutional) law over his veto (or being signed during a previous, less careful Administration), but the President can “drag his feet” or “set priorities” when it comes to enforcement. If the laws were supposed to be executed exactly the way Congress intends, then Congress would have been given the authority to execute them.

  2. says

    Wrong. The president is supposed to enforce all of the laws equally, much like the police, who pursue murderers and jaywalkers with equal vigor (as covered in shows like Law & Order: Minor Crimes Unit and CZI*: Dubuque)

     
    * City Zoning Investigations

  3. gshelley says

    The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment.

    Is this true? I don’t really understand the intricacies of the relationship between the legislature and the Executive, but couldn’t Congress include in its budget a specific amount for going after immigrants who were brought here illegally and have since integrated into society?
    I often wonder what would have happened if the Republicans had managed to defund the ACA. Would they be complaining that the executive wasn’t enforcing that law as well?

  4. Pierce R. Butler says

    The DEA focuses on criminal syndicates rather than ordinary drug users…

    Oh? How many hundred thousand syndicates are locked up in federal pens?

  5. ffakr says

    I’m not sure you wrote what you intended to write.. hard to tell.

    I know a DEA agent. He wasn’t interested in busting kids for holding nor was the DEA as an organization. He was working to bust dealers and producers like meth-labs.

    They may not spend all their time going after the heads of billion-dollar drug cartels like in the action movies but persecuting users certainly isn’t the focus of the DEA either.
    A gang of 40 people in a poor urban neighborhood working together to control territory and engage in organized drug selling is a criminal syndicate after all.. just like a group working together to sell heroin in some of the affluent suburbs around me.

  6. matty1 says

    The drug trade like all big business is a kind of chain from producer to consumer, I suspect that.

    1. The actual growers are largely outside the reach of law enforcement being in remote areas of nations with a history of civil war
    2. The heads of major importing organisations are smart enough not to get near their product in any circumstances they could be noticed by unbribed police
    3. Users are often considered not worth the effort but it provides a useful catch all for arresting people a cop doesn’t like for whatever reason
    4. Most of the focus will be on low to mid-level dealers. The people selling on street corners or the people selling to them

  7. says

    If the laws were supposed to be executed exactly the way Congress intends, then Congress would have been given the authority to execute them.

    Or our chief executive would be a prime minister elected by Congress (and removable by same at any time), more or less like the UK, instead of a President elected independently of Congress.

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