Penn Program on Regulation

Penn Program on Regulation

The Bounds of Executive Discretion in the Regulatory State

| January 25, 2016 - February 1, 2016 | PPR News

the-bounds-of-executive-discretion-in-the-regulatory-statesThe framers of the U.S. Constitution envisioned a government consisting of three branches, each with its own powers and responsibilities. The reason for such a government was to prevent any one branch from becoming too powerful – and especially to prevent the president from becoming a monarch like King George III of the English Empire.

Today, the office of the presidency has grown in size and power, vastly exceeding the scope of the presidency at the founding of the United States. This massive growth in presidential power has hardly escaped notice – or controversy.

Just last week, the Supreme Court of the United States decided to take up an appeal involving the Obama Administration’s immigration reforms. The President announced in 2014 that his administration would grant deferrals from deportation to certain immigrants who are unlawfully present in the country.

But the Constitution orders the president to “take care that the laws be faithfully executed.” Is deferring action against individuals who are not in compliance with the law consistent with the president’s duty of faithful execution?

Of course, the government will never have the resources to pursue formal enforcement actions against each and every violation of the law, whether in the area of immigration or other regulatory realms. There must be some discretion for government officials to pick and choose – and to decide not to pursue enforcement in some cases. The Supreme Court has even stated as much in its 1985 decision in Heckler v. Chaney.

But are there limits to how far the president and executive branch can take enforcement discretion? How far is too far?

To help in answering these questions, Penn Law professors Cary Coglianese and Christopher Yoo worked with the University of Pennsylvania Law Review to convene a symposium last fall around presidential authority in the regulatory state. The Symposium, co-sponsored by the Penn Program on Regulation, featured presentations by the nation’s foremost constitutional and administrative scholars and practitioners.

The University of Pennsylvania Law Review will be publishing the papers presented at the Symposium in a volume to appear later this year. But especially given the timeliness of the Supreme Court’s decision to hear the immigration reform case, RegBlog is pleased to provide a “sneak preview” of the Law Review’s upcoming Symposium issue.

In cooperation with the Law Review staff, RegBlog is featuring a series of brief essays written by our staff writers and editors that summarize each of the Symposium presentations.

We begin today with an essay on the keynote address delivered at the Symposium by Cass Sunstein, the Robert Walmsley University Professor at Harvard University and former Administrator of the Office of Information and Regulatory Affairs. On Tuesday through Friday, we will feature two essays per day summarizing the other Symposium presentations. We conclude next Monday with an essay on the Symposium’s closing remarks delivered by Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School.

You can find RegBlog‘s full series at

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