Category Errors and Executive Power

In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and their potential legal justifications, blurring the distinction between permissible executive discretion over matters of enforcement with broader discretion to adjust legal benefits and burdens. The purpose of this brief essay, prepared for a symposium at the Florida International University Law School, is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions – where the President’s inherent authority to exercise prosecutorial discretion applies – and what sorts of actions do not.