When does executive enforcement discretion spill over into lawmaking?
By Scott Sumner
If a President pardons a single individual for violations of the law, it’s generally viewed as a legitimate act, within the President’s authority. People might view the pardon as unwise, but they generally don’t argue that the act was unconstitutional. But suppose a President pardons everyone who violates a specific law? Has the President overstepped his power, and effectively engaged in rewriting the nations laws? I honestly don’t have strong views, so I’ll present both sides of the issue, relying on people with much more judicial experience. First, Judge Andrew Napolitano, discussing President Trump’s recent executive order:
Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (ObamaCare) in ways that are revolutionary.
With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it? . . .
He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?
Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.
This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of ObamaCare. It is utterly without precedent since Jefferson’s presidency.
Trump’s revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit — that they can be and have been wrong. It is exactly as Trump promised.
For a contrary view, consider Judge Andrew Napolitano’s discussion of President Obama’s decision to stop enforcing immigration laws:
A draft memo obtained by Fox News reveals proposals for executive actions on immigration reform that could be announced by President Obama as early as next week.
As part of the 10-point plan, up to 4.5 million illegal immigrants living with their American born kids would be allowed to stay in the U.S., an expansion of deferred action. The plan would also expand deferred action for DACA children. There is also a proposal to raise pay for ICE officers to boost morale. . . .
Judge Andrew Napolitano said on “Fox and Friends” he “hates” the proposal, regardless of whether it is the “humane” thing to do for illegal immigrants in the United States. He explained that it comes down to the president trying to “rewrite” the law to allow immigrants to stay in the country.
“Under the Constitution, only the Congress can rewrite the law. So you have the president rewriting the law and failing to comply with his oath. What does that equal? That equals serious violations of the Constitution. That equals offenses that rise to the level of impeachability,” said Napolitano, adding that he doesn’t think it would be politically wise for Republicans to pursue impeachment and doesn’t think they will.
So which is it? Can presidents effectively rewrite laws by failing to enforce them, as Napolitano claims? Or not, as claimed by Napolitano?
And are you as confused as I am?
PS. I have one request of commenters. If commenting on these two executive actions, please tell me something about your personal political preferences (i.e. lean Dem or GOP, etc.) But I’d prefer comments on the principles involved, without any reference to these two executive actions. Thanks.