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Article 2 section 3 of the United States Constitution states, in part:

"[The President] shall take Care that the Laws be faithfully executed" (Source: https://constitution.congress.gov/browse/essay/artII-S3-1-3-1/ALDE_00001160/['impeachment'])

At issue here is not whether the President can de-prioritize enforcement of a law, but whether the President can outright refuse to enforce it simply because they don't agree with it.

For example, were President Biden or anyone with authority over Immigration and Customs Enforcement to issue a memorandum that says "United States Immigration and Customs Enforcement is hereby permanently prohibited from making any more arrests for violations of immigration law" would that memorandum be enforceable under the Constitution, or would ICE be legally allowed, or even required, to disregard the memorandum?

3 Answers 3

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It depends who has discretion to enforce the law

In common law jurisdictions the enforcement of law is at the discretion of the executive arm of government.

However, that does not mean that that discretion vests with the President: it might vest with the Attorney General, or local Federal prosecutors, or the Director of the FBI, or the LEO on the scene, or more than one of these. However, whoever it vests with must be free to exercise that discretion - they cannot be told what to do by someone else. So if the discretion vests solely in the President, she can state that she won’t be doing X because she can always change her mind, however, discretion rarely vests solely in a single office.

For the example you cite, it’s likely that a number of people down the line from the President have discretion and telling them what to do is likely unlawful (whether anyone would sue or who might have standing is another question). However, stating that this is no longer government policy and letting that inform their discretion is perfectly fine.

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  • It seems that quite a few times, the President is not directly involved in executive actions (from a legal standpoint.) Rather, it's his reports that carry out the work. For example, President Biden didn't issue a workplace "vaccine or mask" mandate, OSHA did.
    – moonman239
    Jan 30 at 19:03
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A president can "say" whatever he wants, what matters is his legal actions. Barack Obama did not say "We're not gonna enforce marijuana laws", what happened was that James Cole, Deputy AG, issued a memorandum "deprioritizing" marijuana prosecutions under certain circumstances. I don't think there is a clear record of how this came about, i.e. did Obama "It is now the policy of the US government... and I have ordered the DoJ to make it so"? As far as I know there was no official presidential command, but it's hard to imagine that some discussion with the president.

Likewise, DACA original and re-instated did not say "We ain't gonna enforce the law", it say how the law was going to be enforced. As a basic constitutional issue, I think that if a president were to issue an order to simply stop enforcing a law, that action could be overturned as unconstitutional, in that the constitution directs the president to enforce the laws and does not give him powers to deem certain laws null and void. SCOTUS also does not have the constitutional power to order the president to act in a particular way, so while they could invalidate a presidential order, they cannot enforce their own order to start enforcing the law again. On the third hand, Congress clearly has the power to impeach, so the "cannot" might be rooted in Congressional power.

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  • Hopefully, the edit to my question clears things up. I'd consider de-prioritization a separate issue.
    – moonman239
    Jan 29 at 23:15
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Sometimes yes, and sometimes no.

The law distinguishes between non-discretionary duties of the executive branch, which it can be compelled to carry out by writ of mandamus, and discretionary duties of the executive branch, which it cannot be compelled to carry out (as exemplified by the concept of "prosecutorial discretion").

It is not always manifestly obvious which category a particular duty falls under, and courts muddle through on a case by case basis based upon previous precedents for particular kinds of orders.

For example, were President Biden or anyone with authority over Immigration and Customs Enforcement to issue a memorandum that says "United States Immigration and Customs Enforcement is hereby permanently prohibited from making any more arrests for violations of immigration law" would that memorandum be enforceable under the Constitution, or would ICE be legally allowed, or even required, to disregard the memorandum?

This memorandum should be legally enforceable. ICE is not an independent agency and is not allowed to disregard orders from the President who has a direct chain of command to them, because making an arrest is a discretionary decision.

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