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- Title
FEDERAL NONENFORCEMENT AT A CROSSROADS.
- Authors
PRICE, ZACHARY S.
- Abstract
As a novel aspect of "presidential administration"--the presidentcentered approach to federal governance discussed in a 2001 article by then-Professor and future Supreme Court Justice Elena Kagan--broad federal nonenforcement policies have been a major source of controversy in the past decade. As illustrated by the Obama Administration's expansive nonenforcement policies relating to marijuana, immigration, and Affordable Care Act implementation, recent presidents have recognized nonenforcement's potential to reshape statutory law to suit an administration's policy aims. This Article takes stock of this development as it relates to the past three presidential administrations. While advocating a limited view of nonenforcement authority and responding to some arguments for broader approaches, this Article documents the current confused state of both executive practice and judicial case law, offering in particular a critique of the Supreme Court's 2020 decision in Department of Homeland Security v. Regents of the University of California. The Article concludes that federal nonenforcement authority remains at an important crossroads, with potential either to develop into an expansive power to reshape the law through executive action or to remain confined to more limited applications. It urges decisionmakers to embrace the narrower view.
- Subjects
PRESIDENTIAL administrations; KAGAN, Elena, 1960-; JUDICIAL case management; JUDGE-made law; EXECUTIVE power
- Publication
New York University Annual Survey of American Law, 2023, Vol 78, Issue 2, p205
- ISSN
0066-4413
- Publication type
Article