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Can a President Choose to Not Enforce the Law?

The Constitution says "The President shall take care that the laws are faithfully executed." Professor Saikrishna Prakash explains that this means the President does get to choose whether or not to enforce the law, as passed by Congress. However, difficulties arise if a President thinks a law is unconstitutional or simply doesn’t like a law. The President is required to execute the law to the best of his ability although he does have some discretion over how he allocates time and resources to do so. https://youtube.com/watch?v=y-SS6uLqE4o


Article 2, Section 2 says, "The President shall take care that the laws are faithfully executed." That's typically called the Take Care Clause. It's also called the Faithful Execution Clause. The general thrust of the clause is that the President has to execute the statutes passed by Congress with the resources that Congress provides. It's not an option for the President to say, "I don't like this law, and I'm just going to kind of ignore it." That's just not an option given the Take Care Clause. It's not meant to be an option. There are more difficult questions, right, that this clause poses. One question would be, "Can the President ignore a statute that he believes in unconstitutional?" At some level, everyone thinks the answer is yes. If the Supreme Court has decided something is unconstitutional, no one expects the President to enforce the statute after the Supreme Court so decides. The difficulty comes in situations where there's no Supreme Court adjudication on the question of whether the statute's constitutional, but the President's convinced that it is. The earliest example of this occurring is during the Jefferson administration. Thomas Jefferson comes to office. He thinks this Sedition Act is unconstitutional. The Sedition Act basically made it a crime to call into disrepute the members of Congress or Congress itself. Jefferson thinks this is inconsistent with the First Amendment. He says, "No, this law is no law at all. It's unconstitutional. Because it's unconstitutional it can't be a law, and if it's not a law, the Faithful Execution Clause doesn't apply." What about situations where the President doesn't think the law is unconstitutional, but is trying to ... Isn't enforcing the statute? If he uses the resources that Congress has provided to faithfully execute the law, he's done all that he can do. He can't go out and spend more money that Congress hasn't appropriated because that itself would violate the Constitution. When you have lots of laws, and lots of scofflaws, you inevitably create, in the limited budget, you inevitably create some discretion for the President to exercise how best to allocate those limited resources across all the laws and violators. He doesn't have the power to suspend or dispend statutes. Under our system, the President can pardon, but what he can't say is, "You have a right to violate the law."

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