Presidential inaction and the separation of powers.

• Author: Love, Jeffrey A.
• Position: Abstract through II. Identifying Impermissible Presidential Inaction B. Legitimate Reasons for Inaction, p. 1195-1220

Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal government--maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policies--financial deregulation, perhaps, or drug decriminalization--that mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals.

The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances--from the formal requirements of bicameralism and presentment to the modern congressional vetogates. And yet the president aiming to govern by inaction faces virtually none. Instead, to get the federal government out of a particular issue, the second president needs only to ensure that existing laws are not implemented. Critically, he can achieve this goal without the help of Congress or the courts; he can simply direct his executive agencies accordingly.

It wasn't supposed to be this way. James Madison famously articulated a functional account of our governmental structure that would use overlapping authority to prevent any single branch from unilaterally making policy. No doubt Madison and the other Federalists had in mind runaway action; after all, the principal concern in Madison's day was a Congress run amok. But the core principle at play admits of no such restriction. In the modern administrative state, the president's refusal to enforce duly enacted statutes--what we call "presidential inaction"--will often dictate national policy but will receive virtually none of Madison's checks and balances. This asymmetry between action and inaction cannot be justified if we are to remain faithful to the notion that interbranch competition is the core virtue of our constitutional regime.

Yet the stakes are even greater than a need to update our theory of the separation of powers. Unchecked inaction fuels an imbalanced political structure that endows the modern executive with more power to change the scope of government than the Framers--or even the architects of the New Deal--ever imagined. This imbalance amounts to a thumb on the scale, allowing presidents to abandon unilaterally the governmental functions to which they are opposed. In other words, it creates a structural bias against government intervention. The separation of powers is, of course, intended to create friction, to make it difficult to pass legislation. We consider this a feature of our system, not a bug. But once legislation is enacted, the president is obligated to enforce it. Put simply, if the president does not want to enforce a law, he must advocate for its repeal. He may not simply ignore it.

The relative institutional capacities of the various players make the solution clear: our approach would call on Congress to assume the role of robust adversary to the president, a role it can serve far better than the courts. Moreover, examining interbranch relations with inaction in mind would offer new insights on old problems, from statutory interpretation to federalism.

TABLE OF CONTENTS INTRODUCTION I. CONSTITUTIONALIZING INACTION A. Madison's Theory: A Functional System of Checks and Balances B. The Missing Theory of Inaction II. IDENTIFYING IMPERMISSIBLE PRESIDENTIAL INACTION A. Identifying the Statutory Baseline B. Legitimate Reasons for Inaction C. Extrinsic Evidence of Policy Goals D. DOMA: Impermissible Inaction in Action III. A PROBLEM WITHOUT ANY CHECKS A. Weak Judicial Tools 1. Justiciability 2. Merits 3. Remedy B. Weak Congressional Tools 1. The Power To Legislate 2. Oversight C. Theory Versus Practice IV. THE IMPLICATIONS OF INACTION A. Structural Bias B. Objections and Responses 1. Inaction Is Reactive 2. The Constitution Is a Libertarian Document 3. The "Goldilocks" Argument: Inaction Produces Just the Right Amount of Government Intervention C. Creating Robust Checks on Inaction 1. Congress as Legislator 2. Remedying Information Asymmetries and Aligning Incentives 3. Cooperative Federalism, but Cooperating with Whom? 4. The "Presidential Inaction" Canon CONCLUSION INTRODUCTION

Imagine two presidents. The first campaigned on an issue that would require him to expand the role of the federal government--maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushed policies--financial deregulation, perhaps, or drug decriminalization--that would mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals.

The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances--from the formal requirements of bicameralism and presentment to the modern congressional vetogates--because his agenda requires him either to push for new laws or to extend the reach of existing administrative agencies. In either case, he will need congressional authorization and funding, not to mention the judiciary's acquiescence. Conversely, to get the federal government out of a particular issue, the second president faces virtually no checks; he needs only to ensure that existing laws are not implemented. Critically, he can achieve this goal without the help of Congress or the courts; he can simply direct his executive agencies accordingly. The hurdles that the two presidents will face are thus drastically different. Whereas the first president cannot act alone, the second is free to engage in what amounts to unilateral policymaking through inaction, free from the usual constitutional and political constraints.

This state of affairs may sound far-fetched, but it is very real: in just the past two years, numerous policy proposals and real-life decisions have drawn on the president's power to make policy through inaction. During the 2008 presidential campaign and early in his first term, for example, President Obama suggested that he would not prosecute individuals purchasing and selling medicinal marijuana in states that had legalized it. By 2011, he had mostly reversed his position, (1) but when the people of Washington and Colorado legalized all marijuana use in 2012 (based in part on concerns about federalism and prosecutorial discretion), (2) activists began to call on the president to decline to enforce federal marijuana laws in those states despite the clear dictates of the Controlled Substances Act ("CSA"). (3)

Inaction similarly became a matter of contention during the 2012 campaign. In August, presidential candidate Mitt Romney declared that his first executive act would be to waive all state obligations under the Affordable Care Act ("ACA"). That is, despite clear statutory language requiring that the state governments take certain measures--for example, either joining the federal insurance exchange or setting up their own insurance exchanges--as president, Romney would not have enforced that statute against the states. (4)

Perhaps the most prominent example of unilateral policymaking through inaction, however, arose in May 2012, when President Obama directed his Department of Homeland Security not to bring immigration enforcement proceedings against certain undocumented immigrants. (5) The decision, dubbed Deferred Action for Childhood Arrivals ("DACA"), effectively implemented portions of the Development, Relief, and Education for Alien Minors ("DREAM") Act, a legislative proposal that would grant amnesty to some immigrants. Although the Obama Administration had pushed Congress to enact the law, the Senate never gave it an up-or-down vote. Almost a year after it had become clear that the DREAM Act would not succeed, the administration moved unilaterally to achieve the law's aims. (6) Since no recent president has resisted the allure of inaction, we need not look far to find prominent examples.

It wasn't supposed to be this way. James Madison famously articulated a functional account of our governmental structure that would use overlapping authority to prevent any single branch from unilaterally making policy. Indeed, the essence of Madisonian government is that to function smoothly, the federal government's "several constituent parts [must], by their mutual relations, be the means of keeping each other in their proper places." (7) No doubt Madison and the other Federalists had in mind unilateral policymaking by action rather than inaction; after all, the principal concern in Madison's day was a Congress run amok. But the core principle at issue--the idea that no branch should be allowed to dictate policy for the whole nation--admits of no such restriction.

Indeed, modern presidents can usurp authority by both action and inaction. The sheer size of the modern federal government, along with the reach of the president's administrative agencies, presents the twenty-first-century president with unprecedented power to implement his agenda by directing his agents to act and, critically, not to act. When President Bush directs his Environmental Protection Agency to pursue his own goals at the expense of enforcing congressional mandates, (8) for example, or when any president makes policy by choosing not to enforce duly enacted statutes, he encroaches on Congress's authority to make law. The rise of the modern administrative state has thus placed the spotlight on a new problem for the Madisonian separation of powers--the problem of presidential inaction--and the challenge is clear: there is no theoretical difference between the role of presidential action and inaction in the constitutional scheme. Any complete constitutional theory must deal with both forms of presidential policymaking.

The prevailing conception of the...