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Using the current discussion regarding the Johnson Act as an example (unless there are more relevant examples):

Can the Executive branch instruct an administrative agency to not enforce or ignore a law that was enacted by Congress?

The Johnson amendment is part of the tax code, so to remove it would take an act of Congress. But President Trump can direct the IRS not to enforce that portion of the law, Herzig said. “Yes, technically, the only way to get rid of the Johnson Amendment is to have Congress repeal that portion of 501(c)3. It doesn’t mean the executive branch doesn’t have tremendous power in the ability to decide whether they’re going to enforce the Johnson amendment.” Trump said he’ll ‘totally destroy’ the Johnson Amendment. What is it and why should people care? - The Washington Post and AP Explains: The fuss over Trump and the Johnson Amendment

If a law is on the books, how can there be discretion in enforcing it?

Is there a difference in federal or state laws that are legislated?

Or in common law statutes?

  • Of course there has to be some discretion somewhere - with a finite quantity of resources, the government can't put maximum effort into enforcing every law. Someone has to set priorities and that is the President (or the lesser officials to whom he delegates those tasks). But there is obviously a question as to the line between discretion and flat disregard of the law and I hope someone will address that. Similar questions have been raised around the Obama immigration policies, state-legalized marijuana, etc. – Nate Eldredge Feb 2 '17 at 19:29
  • This might be technically handled by having the instruction be not "don't enforce this law" but "enforcing it is your lowest priority". So they would enforce it after they get done enforcing every other law there is - which of course they never will. Again, though, there is surely some limit to this, and I don't know what it is. – Nate Eldredge Feb 2 '17 at 19:32
  • That's true; the law could be prioritized to the bottom of the list. I suppose then someone could take legal action to force the agency to reprioritize, if they had standing, i.e. show that they had been hurt? – BlueDogRanch Feb 2 '17 at 19:39
  • There is no such thing as a "common law statute". A statute is law enacted by a legislature, state or federal (if a local government enacts it, it is called an ordinance). The common law consists of legal rules created by judges in opinions resolving appellate cases through a chain of case law precedents that trace back to the common law (and equity principles) of English law prior to the American Revolution. If an executive branch person makes a legally binding pronouncement it is called a regulation or executive order or ruling or determination or procedure or policy as the case may be. – ohwilleke Feb 3 '17 at 1:43
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One example is the law passed by Congress 21 USC 841 which prohibits production, sale or possession of marijuana: prosecutions have been suspended at the federal level by executive-branch decision, in certain states (Washington, Colorado, others no doubt). Obama indicated at the time that such prosecutions were not high priority, a determination that is uncontroversially within the discretion of any law enforcer. Likewise, the Immigration Accountability Executive Action reprioritized deportations to focus on felons and not children, also focusing on border crossings rather than people in and established.

Congress does not always spell out all of the details, when it passes a law, and may leave some aspects to the executive branch. If the law says "The Secretary of State shall...", then the Secretary of State shall. The degree of compulsoriness would depends on the specific mandate under the law. The law underlying the apolitical nature of 501(c)(3) exemptions is open to some interpretation regarding what it means for a corporation to intervene in a political campaign, thus Congress has implicitly granted the executive branch the power to say what that means, which it has. In 2002 there was a Congressional hearing on this rule, with the report here that includes (starts with) the relevant IRS sub-director testifying as to the IRS's interpretation of the law at the time. The particular prohibited actions that are testified to are not specified by Congress, they are the result of rule-making authorized by 26 USC 501.

  • Good point about marijuana laws not being enforced but still on the books. And I'm glad I didn't root around in the gpo site to find that doc. :) – BlueDogRanch Feb 3 '17 at 1:39
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Many executive branch enforcement/implementation decisions are discretionary, but not all of them. When implementation is mandatory, a writ of mandamus can be filed to carry out the act.

For example, the executive branch has a non-discretionary duty to release people from prison when their sentence expires and must carry out that law.

But, the executive probably does have the authority to decline to use its enforcement resources to prosecute or audit Johnson Act violations. However, this doesn't strictly mean that the law has no legal effect. For example, a voting member of a 501(c)(3) could probably sue to force the charity to comply with the Johnson Act, even if the IRS has a policy of making enforcement of that statutory section its lowest priority.

  • Interesting; so the IRS director can say that Johnson Act violations are lowest priority, but a voting member of a 501(c)(3) could sue for a writ of mandamus to force IRS enforcement against their own and 501s in general? And should I ask a different, broader question about differences in federal or state laws and common law codes and ideas of them not being enforced? – BlueDogRanch Feb 3 '17 at 1:37
  • @BlueDogRanch No. A voting member of the 501(c)(3) could sue the 501(c)(3) in state court to insist that the 501(c)(3) conduct its business in accordance with the Johnson Act because it is legally obligated to do so and other officers or directors have ignored that obligation which they have as a matter of state corporate law. You should probably ask a different broader question and keep in mind that it is quite context specific particular between criminal, public and private law. Enforcement discretion usually concerns criminal and public law not private law. – ohwilleke Feb 3 '17 at 1:41
  • @BlueDogRanch The state attorney-general of the state where a charity is organized also almost always has, either by statute or at common law, standing to intervene in the affairs of any charity in the name of the public and also in the capacity that a voting member would have if there was one. And, a state or local tax collection agency could often make a Johnson Act determination of compliance for purposes of state or local tax collections. – ohwilleke Feb 3 '17 at 1:49

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