Abstract
The purpose of this brief essay 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 cannot. Specifically, this essay seeks to explain why some particularly controversial actions—such as the Administration’s decision to delay the so-called employer mandate imposed by the Affordable Care Act (ACA) and to “tailor” the application of federal regulations governing greenhouse gas emissions under the Clean Air Act (CAA)—are not properly understood as exercises of enforcement discretion, and are therefore unlawful unless they can be justified on other grounds.
Part I of this essay lays out some basic principles about the nature of executive power generally, and enforcement discretion in particular. Part II analyzes the Obama Administration’s repeated decisions to delay and modify the employer mandate. Part III turns to the Administration’s attempt to “tailor” CAA emission thresholds that trigger regulatory requirements so as to facilitate the regulation of greenhouse gases. The essay then concludes.
This abstract has been adapted from the author's introduction.
Document Type
Article
Publication Date
Spring 2016
Publication Information
11 FIU Law Review 357-369 (2016)
Repository Citation
Adler, Jonathan H., "Category Errors and Executive Power" (2016). Faculty Publications. 2291.
https://scholarship.law.wm.edu/facpubs/2291
Included in
Administrative Law Commons, Environmental Law Commons, Health Law and Policy Commons, President/Executive Department Commons
Comments
Written for the FIU Law Review's Separation of Powers symposium (2016).