Recommended Citation
Zachary Price,
Federal Nonenforcement at a Crossroads, 78
N.Y.U. Ann. Surv. Am. L.
205
(2023).
Available at: https://repository.uclawsf.edu/faculty_scholarship/1991
Publication Date
2023
Abstract
As a novel aspect of “presidential administration”—the president- centered 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 ex- pansive nonenforcement policies relating to marijuana, immigration, and Affordable Care Act implementation, recent presidents have recog- nized nonenforcement’s potential to reshape statutory law to suit an administration’s policy aims. This Article takes stock of this develop- ment 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 Univer- sity 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 limite applications. It urges deci- sionmakers to embrace the narrower view.
Document Type
Article
Publication Title
New York University Annual Survey of American Law