While many may like the results of the President taking unilateral executive action–see DACA and whatever else the Administration is cooking up–the means should trouble everyone. In Gridlock and Executive Power, I highlight the danger of the President rewriting the law through non-enforcement, and what precedents this may set for the future. Consider this parade of horribles.
Declining to enforce the law could be just as effective as repealing it. Consider a parade of executive horribles of future administrations declining to enforce the law. Imagine if President Romney, relying on the same sort of power exercised by President Obama, had delayed the Affordable Care Act’s individual and employer mandates indefinitely, until there were enough votes to repeal it. (Romney proposed giving an ACA waiver to all fifty states before attempting to repeal it). Or if President Rand Paul decides not to enforce the corporate income tax against successful Fortune 500 companies, citing similar prosecutorial discretion relied on in DACA. Or if President Hillary Clinton decides to waive the requirement that welfare recipients participate in the workforce to receive benefits. Or if President Ted Cruz, in keeping with the President Obama’s decision not to enforce controlled substance laws in two states, decides not to prosecute Texas businesses for violations of environmental laws. Or if President Elizabeth Warren decides that the government will no longer collect any interest on federally-guaranteed student loans, waiving any enforcement against defaulting debtors. Or if President Rick Perry determines that based on his discretion under the naturalization powers, he can decide to halt all naturalization of people from certain Latin American countries. Or if President Jeb Bush decides to not collect capital gains taxes through modifying treasury regulations (an idea his father considered, and rejected). Or if President George W. Bush had instructed his Social Security Department to not collect a certain percentage of social security taxes, allowing people to deposit the funds directly into individual accounts. I could go on, but you get the picture. In the wrong hands, through the suspension of the laws, the Executive, emboldened by creative lawyers, can enact policies that could never be passed through the legislative process.
Be careful of what you wish for.