I think this is a very good example. President Cruz in 2017 says that the tax code is so complex that he is unable to enforce all of it, so he must prioritize. Therefore, he instructs the IRS that so long as people have paid at least 20% (instead of 39.6%, etc) then they will be considered “low priority” for enforcement purposes. Is that okay?
What if he didn’t couch it in that language, but bluntly said that a 39.6% rate was confiscatory and that he thought it immoral to take more than 20% of a person’s income? Would that change the calculus?
What if instead of tinkering with percentages, he simply said that unless you owed more than $10 million to the IRS, prosecution would be a “low priority”? $100 million? $100 trillion? Is that different than the two above?
I don’t think anyone is arguing that it’s not possible through discretion to make unwise decisions, or even decisions that amount to end-runs around congressional intent (that Congress failed to put into express law).
But normally when an exercise of executive discretion contradicts how Congress wishes for that discretion to be used, the answer is for Congress to provide less discretion. So, for example, Congress could write a statute that says that funds appropriated for IRS audits may only be used for audits that do not consider the amount the taxpayer has contributed.
Naturally, the GOP doesn’t like that solution because they know that Congress is broken and would never do anything politically difficult like that. It’s the same reason that Democrats don’t like it when Scalia suggests that striking down the Voting Rights Act is no problem because Congress can just pass a better one, or any other time when a legislative fix is proposed when it’s not, in reality, plausible.
Attempting to make unwise or pretextual exercises of discretion a constitutional issue seems like the kind of thing a guy like Justice Scalia would hate, if he were sincere about his ideology of opposing over-constitutionalization of political and process disputes.
This is why the tax example is a good one. Sure specificity could be used for to designate funds for types of audits, but with the example of tax rates and who will be forced to pay or not pay, this doesn’t have to be done through audits. It’s not through action that the rates can be gamed, but inaction. Congress can’t well specify the priority of which actions to not take. (btw, I can’t figure out how to construct that sentence better). IOW, if President Sanders said, I don’t think people who make less than $50K AGI should pay any federal taxes and therefore anyone who reports AGI less than that and fails to pay the tax liability that Congress has set, will not be pursued legally. No audits are being conducted therefore the legislative rule that audits can not consider the amount the taxpayer has paid/owed has not been violated. If we consider that one of the jobs of the IRS is to collect taxes per the law, it would be equivalent of saying, “you can’t make me do my job.”
I suppose alternatively the President can simply pardon everyone who has less than $50K AGI for the crime of tax evasion.
Why can’t Congress legislate prosecutorial priorities or considerations?
I don’t see why Congress couldn’t pass a law that says that no U.S. attorney shall consider a taxpayer’s AGI in determining whether to bring charges for tax evasion.
The only limit on that I can imagine is an argument that these decisions are within the exclusive power of the President. But if that’s true, then the “Take Care” clause is irrelevant either way.
Without more knowledge, I’d think you could make the argument that the take care clause is just generalization about what a President is, rather than what he does, a bit like the preamble, and isn’t a specific, enforcable duty. Plus it says “properly,” which hands discretion back to him.
Lets say that Congress passes such legislation and in practice no one whose AGI is less than $50K is ever prosecuted for tax evasion, even if they pay no federal taxes. On top of that, the IRS publicizes their plan to do this, flouting Congress’s expressed intent. Setting aside impeachment, would there be any remedy? I imagine funds could be withheld in other appropriations as penalty or bargaining chip. Other options?
Enforcement of the statute in federal court, I presume.
But to me these are quite distinct problems. It is entirely appropriate that impeachment be the remedy when a President directly violates a validly enacted statute. It is another thing altogether to say that some exercises of enforcement discretion sufficiently vitiate the purpose of a statute that they are constitutionally off-limits, even when the statute does not set enforcement criteria or priorities.
Congress’ intent is to deport as many illegals as resources allow. If Congress intended to deport only felons and repeat border crossers, that would be in the law.
Resources are great enough to allow for significant deportations beyond the felons and repeat border crossers that the President would like to concentrate on. As a matter of fact, those resources are so significant that the President built up a pretty great record on deportations, thus proving that the resources are there to deport a pretty nice chunk of the illegal population.
So I’m not sure he can turn around and then just decide he’d rather not do that, well, just because he doesn’t want to do that. And it’s not like those resources can be better used for other things. He can’t task ICE and Border Patrol with going after child pornographers, or have them act as first responders in case of terrorist attack. So I would bet that a creative prosecutor could argue that what the President is doing effectively amounts to impoundment of funds. “I have the resources to deport 200K per year, but I only want to deport 100K per year” could be argued as equivalent to saying, “I got $2 Billion for enforcement but I only want to spend $1 billion.” Which is illegal.
The pardon power, and the duty to take Care that the Laws be faithfully executed, are plain and simple inconsistent. If both were in the Bible, the atheists on the board would point this out. You can reconcile them the way a theologian can reconcile biblical inconsistencies, but they still conflict.
The pardon power is meant to correct judicial error. Not inconsistent in intent, but yes, it is inconsistent in terms of the power it actually grants the President.
But then again, there’s also the political risks abuse of the power carries. If Obama can pardon illegal immigrants as a class, a Republican can pardon business owners or taxpayers, thus undercutting the government’s regulatory and tax powers.
Of course it has almost never been used to correct judicial error, but it also hasn’t been used in such a way as to encourage it as an effective veto of existing laws passed by Congress.
So in other words, President Rubio can’t effectively nullify Davis-Bacon through the pardon power.
True, but it was for a single war and not a license to dodge future drafts, whereas the President’s immigration plan is a response to an ongoing issue with the law as HE sees it.Presumably, if reform still isn’t passed five years from now, a future Democrat might decide that all the border crossers from that five years need protection from deportation too.
Except that this too is a response to current events and not a perpetual policy, seeing as how there is slowly increasing bipartisan support for some kind of significant immigration reform.