VOLUME 164, ISSUE 7 August 2016


What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized around the papers appearing in this special Issue of the University of Pennsylvania Law Review. We are pleased to introduce this insightful collection of scholarship by explicating the conceptual contours underlying the contemporary debate over executive discretion, and its bounds, in the regulatory state.

In the modern era, the executive branch has extraordinary information‐gathering advantages over the legislative and judicial branches. As a result, it will often know immeasurably more than they do, both on domestic issues and on foreign affairs. In general, it also has a strong system of internal checks and balances, reducing (though certainly not eliminating) the risk of factual error. Because the executive is the most knowledgeable branch, it often makes sense, within constitutional boundaries, to give it considerable discretion in both domestic and foreign affairs and to grant it considerable (though hardly unlimited) deference when it exercises that discretion. Both legislators and judges tend to be insufficiently aware of their epistemic disadvantages. The argument for restricting executive discretion depends on suspicion about the biases and motivations of the most knowledgeable branch and about its failure to give sufficient respect to liberty, and an associated fear of some form of “groupthink,” usually in the form of group polarization. In some times and places that suspicion is extremely important, but it is hazardous to invoke it as a basis for confining the authority of those who have the most knowledge. These points are illustrated with close reference to the debate over the Department of Transportation’s rear visibility rule, proposed in 2010 and finalized in 2014.

My argument is that the presidency of the United States has the institutional disposition and capacity for constitutional arrogance—to take unilateral actions challenging its constitutional boundaries and extending its powers at other authorities’ expense. While every federal branch is prone to push its respective powers to—if not beyond—its limits (which is why the Constitution requires “[a]mbition must be made to counteract ambition”), there are several, unique forces incentivizing the presidency, as an institution, to have the disposition and the ability to aggrandize its authority.

My perspective is grounded in institutionalism, which seeks to illuminate the context of presidential actions, to situate such actions within the arc of developing presidential authority over time, and to provide a basic language for understanding presidential power.5 From this perspective, I suggest, in Part III, that the most potent constraints on constitutional arrogance are judicial review, public opinion, concerns about historical legacy, and conventions. Although law provides a conceptual framework and grammar, these considerations provide some resistance to, but do not always curb, the presidency’s propensity and capacity to take advantage of constitutional indeterminacy and undertake unilateral action with the purpose or effect of aggrandizing itself and wresting power from other branches, particularly Congress.

Balance‐of‐powers arguments are ubiquitous in judicial opinions and academic articles that address separation‐of‐powers disputes over the President’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. Possible theories of the balance of powers are examined and all are rejected as unworkable and normatively implausible. Judges and scholars should abandon the balance‐of‐powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes. Additionally, implications for the underenforcement controversy are discussed.

Six years after its enactment and two years after the full implementation of the Affordable Care Act, now is an auspicious time to take stock. Moving past the partisan bickering, to what extent has the Obama Administration skirted the law or broken conventions to implement the ACA? In what ways, if any, has the messy implementation process set worrisome precedents? How troubled should we be if the Administration has at times brushed up against and even exceeded the limits of its power?

To get traction on these questions, this Article takes a close look at the most hotly debated legal questions surrounding the ACA’s rollout. The selections reflect my own judgments about the most serious allegations of executive impropriety, but they are not idiosyncratic: they closely track—and indeed go beyond—the selections made by those seeking to demonstrate the President’s disregard for law.2 My hope is that a holistic and even‐handed examination of the Administration’s purported legal excesses will provide a useful focal point for understanding how law restrains executive discretion in a time of polarized politics. The Article closes with some thoughts about the status of executive lawbreaking in American constitutional culture and how to discipline such lawbreaking when it occurs.

This Article uses Deferred Action for Parents of Americans and Lawful Permanent Resident program (DAPA) to explore the tension between the discretion granting and discretion‐limiting features of the Faithful Execution Clause. Guidance from the courts on the scope of administrative enforcement discretion is sparse, and likely to remain so. The OLC opinion on DAPA’s legality attempted to develop 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.

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial forms of executive review are permissible, the arguments against signing statements amount to nothing more than objections to the form in which constitutional review is exercised. Indeed, when the objections are constitutional in nature, the signing statement does little work itself, as it is the Constitution itself rather than the signing statement that invalidates the statute, and there are clear benefits to announcing the constitutional interpretation that will be applied to the statute at the time of enactment.

In simple but delphic terms, the Take Care Clause states that the President “shall take Care that the Laws be faithfully executed.” Today, at least, no one can really know why the Framers included such language or placed it where they did. Phrased in a passive voice, the clause seems to impose upon the President some sort of duty to exercise unspecified means to get those who execute the law, whoever they may be, to act with some sort of fidelity that the clause does not define. Through a long and varied course of interpretation, however, the Court has read that vague but modest language, in the alternative, either as a source of vast presidential power or as a sharp limitation on the powers of both the President and the other branches of government.

A brief Article is no place to try to fill all the interpretive and analytical gaps in the Court’s Take Care Clause jurisprudence or to wade into the rich debates that have engaged legal scholars, if not the Court. Instead, the Article brings together various doctrines in order to show that the Court uses the Take Care Clause as a placeholder for more abstract and generalized reasoning about the appropriate role of the President in a system of separation of powers. It also sketches lines of inquiry that the Court might pursue if it were ever to approach the Take Care Clause seriously on the clause’s own terms.

The continuing debate over the President’s directive authority is but one of the many separation‐of‐powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking institutions.10 In these and other cases involving disputes over interbranch relations, courts and academic analysts have perennially grappled with both legal interpretation as well as constitutional history and political theory. Yet, as much as these cases involve law, history, and theory, they also at least implicitly raise decidedly empirical questions about law’s effects on governmental behavior as well as its impacts on the legitimacy of constitutional government.

Empirical questions are embedded throughout all forms of law, but the empirical effects of structural aspects of constitutional law have so far largely escaped systematic study. Admittedly, political scientists have studied the three branches of government and their interactions extensively, but what have so far avoided systematic empirical study are the relationships between different choices about separation‐of‐powers doctrine and outcomes in terms of governmental behavior or public attitudes about governmental legitimacy. This Article offers an initial foray into this largely unexplored terrain, providing a distinctive empirical investigation of public norms about executive power and how doctrinal choices can affect perceptions of the legitimacy of legal judgments. We focus here on Presidents’ efforts to get involved in shaping what agencies do.

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed.” Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and do constrain presidential nonenforcement discretion, and that they are far better situated to do so when they operate under the rubric of conventional administrative law. Often caricatured as categorically deferential to questions of enforcement discretion, the law of agency inaction is in fact nimble enough to constrain the most egregious instances of executive overreach in nonenforcement, and unique doctrinal features, such as the doctrine of finality, give courts a safety valve to control strains on judicial capacity.

Conventions pervasively shape and constrain executive discretion and are an indispensable tool for understanding the issues discussed in the articles. Debates among legal academics over executive discretion misfire if and when the role of conventions is overlooked or misunderstood. In particular, legal debates over executive discretion should take account of three distinctions: (1) between contingent politics and conventions; (2) between intragovernmental conventions and extragovernmental conventions; and (3) between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement

discretion, one that would otherwise remain implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively inflected political sanctions that are characteristic of conventions.

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