Document Type
Article
Publication Date
6-2016
Journal Title
University of Pennsylvania Law Review
ISSN
0041-9907
Abstract
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.
First Page
1911
Last Page
1948
Num Pages
38
Volume Number
164
Issue Number
7
Publisher
University of Pennsylvania Law School
Recommended Citation
Daniel E. Walters,
The Judicial Role in Constraining Presidential Non-Enforcement Discretion: The Virtues of an APA Approach,
164
U. Pa. L. Rev.
1911
(2016).
Available at:
https://scholarship.law.tamu.edu/facscholar/1580
File Type
Included in
Administrative Law Commons, Constitutional Law Commons, Jurisprudence Commons, President/Executive Department Commons