Zachary Price on the Constitution and Enforcement Discretion | The Volokh ConspiracyThe Volokh Conspiracy: "Through close examination of the text, history, and normative underpinnings of the Constitution, as well as relevant historical practice, the article demonstrates that there is indeed a constitutional authority of enforcement discretion — but it is both limited and defeasible. Presidents may properly decline enforcement of civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” But this authority does not extend to prospective licensing of prohibited conduct, nor to policy-based non-enforcement of federal laws for entire categories of offenders. Presuming such forms of executive discretion would collide with another deeply rooted constitutional tradition: the principle that American Presidents, unlike English Kings, lack authority to suspend statutes or dispense with their application to particular individuals. This framework not only clarifies the proper executive duty with respect to enforcement of federal statutes, but also points the way to proper resolution of other recurrent separation-of-powers issues."
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