I took a little hiatus from Cline on the Constitution to recharge the old batteries.  Lots happening at Supreme Court and elsewhere. Will try to catch my readers up over the next few weeks.

 

Executive Power

 

Out of the overheated debates on the situation at the border, lost among the shrieking and gnashing of teeth, is the question of the President’s responsibility for enforcing the laws of the United States.

 

There is little question that adults with children in tow have traveled from Central America across Mexico either with assistance of the Mexican government and the human trafficking cartels the leaders of Mexico allow to operate in their country. Arriving at the border, these people intentionally violated federal statues by illegally entering the United States.

 

Some claim they require asylum, some of the claims are legitimate, some fraudulent.  In order to properly evaluate asylum claims, federal law requires the persons making the claim to appear at designated Ports of Entry and not illegally sneak across the border attempting to avoid apprehension.

 

This administration recently announced a “Zero Tolerance” policy.  That is, they will arrest, detain, and prosecute the adults for violating the criminal statues of the United States without exception.  Because of federal laws, federal court decisions and consent decrees administered by the federal courts with the arrest of the lawbreakers, the separation of the adults from the children occurs. Some of the children belong to the adults.  Some don’t.

 

The President has demanded corrective legislation from Congress.  Members of Congress respond that he should simply order federal officers not to enforce the law.  The latter is consistent with past practice.  In the past the adults were released after solemnly, under oath promising to return for court proceedings. They of course lied.  After breaking the law and swearing to return, the vast majority absconded.

 

That sets the Constitutional issue.  May the President refuse to enforce the law?

 

Article 2, section 1, clause 1 of the Constitution vests all Executive Power in the President of the United States.  And Article 1, section 3, provides that the President shall, “take Care that the Laws be Faithfully executed.”  He is explicitly charged with the responsibility to “Faithfully Execute the Law.”

 

On the face of it there would be no choice.  The law is the law and the President is required to carry it out.  Right?  That would appear to be the meaning of “faithfully executed.”  However, it’s just not that simple.  The Supreme Court has long recognized that there is an element of discretion that is granted the Chief Executive.  It is the same discretion that is granted locally elected District Attorneys across the nation.  In fact, as applied to the Presidency the Court even used the term “Prosecutorial Discretion” interchangeably with “Executive Discretion.”

 

Having served over three decades as a prosecutor, two of those decades as the elected District Attorney, it’s a subject I know something about. When I teach about the subject I use the phrase “The Power of No.”

 

To appreciate the phrase a little history is useful.  The evolution of the “independent” prosecutor developed during the flowering of Jacksoninan Democracy. Andrew Jackson lead the movement of having local office holders freely elected instead of being appointed by Governors or legislatures. District Attorneys across the nation during his term started breaking away from being an arm of the judiciary until by the time of the Civil War, most were being independently elected. As that evolution occurred, one of most hotly debated issues was prosecutorial discretion, “The power to say No.”  That is, it didn’t matter who wanted a case filed, or prosecuted, the discretion of the local prosecutor meant they could refuse to proceed with the case and no one could make them do so.  The thoughtful legal scholars of the time thought that too much power.

 

Over the decades, the discretion to not proceed with a prosecution has been justified in numerous ways. As a means for saving resources, for being able to tailor justice in exceptional cases and other reasons.  And it continues to this day.  President Obama’s administration decided not to enforce the federal marijuana laws and refused to enforce the Defense of Marriage Act (DOMA) that defined marriage as being between one woman and one man for purposes of federal law. The present administration, like past administrations has indicated they may not spend the money allocated by Congress in the budget just passed, in effect impounding the funds.

 

On the other-hand some legal scholars have also argued that a President refusing to enforce the law is unconstitutional.  They point out that it constitutes an interference with Article 1’s delegation of all legislative power to the Congress.  If the President refuses to enforce the laws passed by Congress, does that not transfer the legislative power to the President, in effect giving him a super veto power over legislation that can’t be overridden by Congress?

 

In those situations where holder of the executive power refuses to enforce the law, what is the remedy? What can be done about it legally?

 

It’s not a “Congressional Oversight” question.  Congressmen like that term, but in reality, though they share some powers, they don’t have constitutional oversight of a co-equal branch of government.

 

The remedy usually recognized is a democratic one.   The elected executive/prosecutor can be replaced through the process of an election. If the voters don’t like that the laws are not being enforced, they can replace the official.  One could argue, I suppose, that that occurred when President Trump was elected ostensibly in part to enforce the immigration laws that had been benignly neglected by past Presidents.

 

What is clear, however, is that the Court would most probably recognize the President does have discretion not to enforce the laws requiring the arrest of individuals illegally entering our country.  He does have the power to say No.

 

Whether this would be heartwarming in the short term by reuniting the child with the adult or heartbreaking in the long term by encouraging endless lawlessness on our border, is a difficult question.  “Executive Discretion”, the power to decide when to go forward or when to say “No” is real power.  Knowing when and how to apply it is not that easy.

 

For more article and writing by Phil Cline, you are invited to visit philcline.com