At issue in United States v. Texas, et al., is whether the President violated his constitutional duty to “take care that the laws be faithfully executed” when he established an intricate set of rules whereby he could refuse to enforce the nation’s immigration laws. These rules—called “DAPA”—were written expressly for the purpose of refusing to enforce laws with which the President disagrees. As the Cato Institute argues in its amicus brief in the case, it cannot be “faithful execution” for the President to design a program for the express purpose of refusing to enforce laws simply because he dislikes them.
One hangup that some lawyers have is the question of whether courts can have the authority to determine when a President has failed to faithfully execute the law. That doesn’t seem like the kind of either-or judgment that judges typically engage in. But as the brief points out, courts quite often judge the difference between “good faith” and “bad faith,” especially in contract cases. Bribery cases, too. The only difference between a government official voting against a bill because he disagrees with it, and voting against it because someone paid him to vote that way, is that one is in good faith and one is in bad faith.
But the brief omits one especially interesting recent precedent, and I fear it gives the impression that this is an area of law that has been relegated to the nineteenth century. Actually, the D.C. Circuit Court of Appeals addressed the “Take Care” Clause in some depth just three years ago, in In re. Aikin County, 725 F.3d 255 (D.C. Cir. 2013).
That case involved the controversial Yucca Mountain nuclear waste disposal site. The plaintiffs sued the Nuclear Regulatory Commission and some federal agencies, asking the judge to order them to grant a permit to construct the site. The Commission and the administration had been delaying and dragging their heels for a long time, despite Congress having ordered the Commission to go ahead. “The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries,” the court noted. “Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.”
After detailing the many delays and obstruction tactics in which the Commission and the White House had engaged, the court concluded that they were “simply flouting the law” out of “policy disagreement with Congress’s decision about nuclear waste storage.” But such disagreement was “not a lawful ground for the Commission to decline to continue the congressionally mandated licensing process.” The court emphasized that the President “may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.”
Citing the Take Care Clause, the court observed that the President could refuse to enforce laws he holds to be unconstitutional. (In fact, I would argue, he has an obligation to so refuse.) But that wasn’t the case here, because nobody was arguing that the laws were unconstitutional. Second, the court noted, the President “possesses a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law,” but that, too, was inapplicable because while the President could refuse to prosecute someone or could pardon someone, that sort of discretion only “encompasses the Executive’s power to decide whether to initiate charges for legal wrongdoing and to seek punishment [or] penalties,” and “does not encompass the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch.” Because the White House was refusing “to follow a law mandating that the Commission take certain non-prosecutorial action,” the issue of prosecutorial discretion was simply not at issue.
The court added a few words on the issue of discretion (I've omitted quotes and citations:
The Executive's broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior—more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law. The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. After enacting a statute, Congress may not mandate the prosecution of violators of that statute. Instead, the President's prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed (and still further protection comes from later review by an independent jury and Judiciary in those prosecutions brought by the Executive). To be sure, a President's decision to exercise prosecutorial discretion and to decline to seek charges against violators (or to pardon violators) of certain laws can be very controversial. For example, if a President disagreed on constitutional or policy grounds with certain federal marijuana or gun possession laws and said that the Executive Branch would not initiate criminal charges against violators of those laws, controversy might well ensue, including public criticism that the President was “ignoring” or “failing to enforce” the law (and if a court had previously upheld the law in question as constitutional, additional claims that the President was also “ignoring” the courts). But the President has clear constitutional authority to exercise prosecutorial discretion to decline to prosecute violators of such laws, just as the President indisputably has clear constitutional authority to pardon violators of such laws. The remedy for presidential abuses of the power to pardon or to decline to prosecute comes in the form of public disapproval, congressional “retaliation” on other matters, or ultimately impeachment in cases of extreme abuse.
How does apply to the DAPA case? Two things. First, it emphasizes that the “Take Care” Clause is justiciable, in at least some cases, and that the Clause has not been left in the quaint past along with “Old Hickory.” Second, although DAPA’s defenders have tried to claim that it’s just an exercise of prosecutorial discretion, the Cato brief explains in depth why DAPA is much more than that. And the Aiken County court noted that “the President’s power not to initiate a civil enforcement action may not be entirely absolute (unlike with respect to criminal prosecution) and thus might yield if Congress expressly mandates civil enforcement actions in certain circumstances.” (Deportation is a civil, not a criminal proceeding.)
As I’ve argued before, the key question here is the meaning of the word faithful. Defenders of DAPA have not even tried—their claims to the contrary notwithstanding—to address the meaning of that word. The reason is obvious. A presidential policy that establishes a series of rules for the express purpose of defying the duly enacted laws, out of a policy disagreement with those laws, and after the President’s failed effort to repeal them, is plainly not faithful execution of the laws. Courts are very often called upon to determine whether a person or a public official has acted faithfully or not—we call it “good faith” or “bad faith.” And as the Aiken County case demonstrates, this issue is very much a live legal question that courts can resolve. To order executive agencies to enforce the law, as the Aiken County court said, is not some form of “judicial activism,” but is rather a sign of “the constitutional respect owed to Congress.”
My article on the political philosophy of The Walking Dead is in the next issue of Reason. You can read it online here. Basically, I argue that the thesis of TWD is that political society is impossible; that the "bourgeois virtues" necessary to sustain it are unserious, and the ideal of the pursuit of happiness is doomed. Brush aside its Nietzschean nostalgia for the aristocratic virtues of antiquity, and the series represents the antisocial nihilism of a new Dark Ages.
Which isn't to say I dislike the show. Quite the contrary.