May 2014 Vol. 112 No. 7 THE REVIEW

Presidential Inaction and the Separation of Powers

Jeffrey A. Love & Arpit K. Garg

Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal governmentmaybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policiesfinancial deregulation, perhaps, or drug decriminalizationthat mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals.

The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balancesfrom the formal requirements of bicameralism and presentment to the modern congressional vetogates. And yet the president aiming to govern by inaction faces virtually none. Instead, to get the federal government out of a particular issue, the second president needs only to ensure that existing laws are not implemented. Critically, he can achieve this goal without the help of Congress or the courts; he can simply direct his executive agencies accordingly.

It wasn't supposed to be this way. James Madison famously articulated a functional account of our governmental structure that would use overlapping authority to prevent any single branch from unilaterally making policy. No doubt Madison and the other Federalists had in mind runaway action; after all, the principal concern in Madison's day was a Congress run amok. But the core principle at play admits of no such restriction. In the modern administrative state, the president's refusal to enforce duly enacted statuteswhat we call "presidential inaction"will often dictate national policy but will receive virtually none of Madison's checks and balances. This asymmetry between action and inaction cannot be justified if we are to remain faithful to the notion that interbranch competition is the core virtue of our constitutional regime.

Yet the stakes are even greater than a need to update our theory of the separation of powers. Unchecked inaction fuels an imbalanced political structure that endows the modern executive with more power to change the scope of government than the Framersor even the architects of the New Dealever imagined. This imbalance amounts to a thumb on the scale, allowing presidents to abandon unilaterally the governmental functions to which they are opposed. In other words, it creates a structural bias against government intervention. The separation of powers is, of course, intended to create friction, to make it difficult to pass legislation. We consider this a feature of our system, not a bug. But once legislation is enacted, the president is obligated to enforce it. Put simply, if the president does not want to enforce a law, he must advocate for its repeal. He may not simply ignore it.

The relative institutional capacities of the various players make the solution clear: our approach would call on Congress to assume the role of robust adversary to the president, a role it can serve far better than the courts. Moreover, examining interbranch relations with inaction in mind would offer new insights on old problems, from statutory interpretation to federalism.

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