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I don't blame them. There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at

I don't blame them. There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. They do have some latitude in directing how enforcement by federal agencies occurs. And they have a lot of latitude when it comes the enforcement of presidential directives or agency policies. But a law duly debated and passed by a large majority of congress, signed by the president and already evaluated and allowed to stand by a unanimous Supreme Court? Well, that's uncharted territory. It's a question I find fascinating for several reasons. First, recent presidents of both parties have all danced near, around and over this line to some extent (so we need to address it). Second, there's little constitutional guidance on the question and existing policy and precedent are sparse and inconsistent. Third, I'm not sure what the proper mechanism might be for resolving the question - or if there even is one. Fourth, I'm not entirely sure what I think the answer should be. And all that makes this super interesting. To be clear, I'm ONLY interested in this question from a long-term, system-design perspective. It doesn't matter who the current president is or what the specific law regards. Any useful answer needs to work just as well if it's Biden ordering non-enforcement of certain immigration laws or Trump ordering non-enforcement of a TikTok ban. So please set aside the current context and any partisan preferences and consider it purely as a constitutional issue about rule of law. In terms of what the rule should be when some president 20 years from now orders an agency to not enforce some law, I can see it both ways. I think presidents should have some discretion in how the agencies they manage enforce laws. It just seems pragmatic to have some latitude in how enforcement is implemented because situations can vary. But should that latitude extend to just ignoring the law? How about delaying enforcement for three days because there's a hurricane or something? Okay, sure. What about delaying it months? And then renewing the delay? It's pretty easy to imagine that going wrong someday. So, how do we codify a rule that balances these conflicting things? Finally, who's responsible for coming up with a clear set of rules? I think most people would assume it's the Supreme Court's job to figure it out. The problem is that SCOTUS has rules about what they can consider and when. Someone needs to have standing to sue POTUS and grounds to sue on. I'm not sure that POTUS NOT enforcing a law violates any existing law. But I'm not a constitutional scholar. I just don't know and that's why I think Apple or Google would be pretty crazy to put TikTok back in their app stores relying on this non-enforcement order as safe harbor.

tpmoney 2y ago
> There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. In addition to your example regarding immigration, arguably the entire legal/medical marijuana industry in various states depends entirely on exactly this. 1) Federally, marijuana is still a Schedule I drug. Congress by way of delegation to the DEA has declared marijuana has no accepted medical uses and a high risk of addiction. 2) Sale and distribution of controlled substances is a federal crime. These businesses operate openly and with the tactic approval of the state in which they operate. 3) Wickard v Filburn established th reach of federal authority into exclusively intrastate commerce. So the only way these business can continue to operate is if the president directs federal law enforcement to not enforce the drug laws. This is (IMO) a good reason why the degree to which our political process has come to rely on EOs is a bad thing. We've just accepted that congress can apparently do nothing (except apparently ban TikTok) and so we just accept that every 4 years, the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
- kelseydh 2y ago
  In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction. Ultimately, the govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Law enforcement being responsive to an uncodified social contract is a healthy thing.
  - mrandish 2y ago
    > govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Yes, I agree that will always be true - to some extent. And, sometimes, it's generally a good thing - up to a point. However at other times and places, like the Southern states in the Jim Crow era, having law enforcement's personal opinions influencing which laws get enforced has gone very badly. While I certainly hope the pervasive excesses of the Jim Crow south will never be repeated, there have continued to be a variety of lapses and regressions in limited areas about once a decade. So, I don't think it's safe to assume they won't continue in the future. That means we'll keep needing a codified system enabling latitude in some aspects of enforcement while also punishing transgressions. No doubt, this is hard stuff. > Congress has proven broadly incapable of passing or updating laws Here's a tangential point that I'll mention anyway. As you said, when it really wants to, congress is perfectly capable of passing laws quite quickly. It's just that in our present very evenly divided political climate, there's no strong consensus mandating action for a lot of issues. In the absence of a significant percentage of the population, like at least two-thirds, wanting congress to act, congress is correct in not acting. There are now a substantial number of voters who vote with an intentional strategy of maintaining congressional gridlock. For them, the current situation of congress being unable to pass many significant or sweeping new laws isn't a bug, it's "the will of the people" (or at least those 'people'). > even when polling shows a strong majority consensus for a new direction. I'm skeptical that the things which have a strong majority consensus are also the things which congress can realistically act on and things which voters want congress to act on. And all three need to be true. There are quite a few things I personally think would make the world a better place if the majority of people would do them voluntarily BUT I would never want congress to force these good ideas on other consenting adults by law. So, I would answer a poll strongly in the affirmative about what people should do - but also not want congress to force anyone to do it - and polls never make that distinction.

tpmoney 2y ago

> There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. In addition to your example regarding immigration, arguably the entire legal/medical marijuana industry in various states depends entirely on exactly this. 1) Federally, marijuana is still a Schedule I drug. Congress by way of delegation to the DEA has declared marijuana has no accepted medical uses and a high risk of addiction. 2) Sale and distribution of controlled substances is a federal crime. These businesses operate openly and with the tactic approval of the state in which they operate. 3) Wickard v Filburn established th reach of federal authority into exclusively intrastate commerce. So the only way these business can continue to operate is if the president directs federal law enforcement to not enforce the drug laws. This is (IMO) a good reason why the degree to which our political process has come to rely on EOs is a bad thing. We've just accepted that congress can apparently do nothing (except apparently ban TikTok) and so we just accept that every 4 years, the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.

kelseydh 2y ago
In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction. Ultimately, the govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Law enforcement being responsive to an uncodified social contract is a healthy thing.
- mrandish 2y ago
  > govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Yes, I agree that will always be true - to some extent. And, sometimes, it's generally a good thing - up to a point. However at other times and places, like the Southern states in the Jim Crow era, having law enforcement's personal opinions influencing which laws get enforced has gone very badly. While I certainly hope the pervasive excesses of the Jim Crow south will never be repeated, there have continued to be a variety of lapses and regressions in limited areas about once a decade. So, I don't think it's safe to assume they won't continue in the future. That means we'll keep needing a codified system enabling latitude in some aspects of enforcement while also punishing transgressions. No doubt, this is hard stuff. > Congress has proven broadly incapable of passing or updating laws Here's a tangential point that I'll mention anyway. As you said, when it really wants to, congress is perfectly capable of passing laws quite quickly. It's just that in our present very evenly divided political climate, there's no strong consensus mandating action for a lot of issues. In the absence of a significant percentage of the population, like at least two-thirds, wanting congress to act, congress is correct in not acting. There are now a substantial number of voters who vote with an intentional strategy of maintaining congressional gridlock. For them, the current situation of congress being unable to pass many significant or sweeping new laws isn't a bug, it's "the will of the people" (or at least those 'people'). > even when polling shows a strong majority consensus for a new direction. I'm skeptical that the things which have a strong majority consensus are also the things which congress can realistically act on and things which voters want congress to act on. And all three need to be true. There are quite a few things I personally think would make the world a better place if the majority of people would do them voluntarily BUT I would never want congress to force these good ideas on other consenting adults by law. So, I would answer a poll strongly in the affirmative about what people should do - but also not want congress to force anyone to do it - and polls never make that distinction.