I don't blame them. There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. They do have some latitude in directing how enforcement by federal agencies occurs. And they have a lot of latitude when it comes the enforcement of presidential directives or agency policies. But a law duly debated and passed by a large majority of congress, signed by the president and already evaluated and allowed to stand by a unanimous Supreme Court? Well, that's uncharted territory.
It's a question I find fascinating for several reasons. First, recent presidents of both parties have all danced near, around and over this line to some extent (so we need to address it). Second, there's little constitutional guidance on the question and existing policy and precedent are sparse and inconsistent. Third, I'm not sure what the proper mechanism might be for resolving the question - or if there even is one. Fourth, I'm not entirely sure what I think the answer should be. And all that makes this super interesting.
To be clear, I'm ONLY interested in this question from a long-term, system-design perspective. It doesn't matter who the current president is or what the specific law regards. Any useful answer needs to work just as well if it's Biden ordering non-enforcement of certain immigration laws or Trump ordering non-enforcement of a TikTok ban. So please set aside the current context and any partisan preferences and consider it purely as a constitutional issue about rule of law.
In terms of what the rule should be when some president 20 years from now orders an agency to not enforce some law, I can see it both ways. I think presidents should have some discretion in how the agencies they manage enforce laws. It just seems pragmatic to have some latitude in how enforcement is implemented because situations can vary. But should that latitude extend to just ignoring the law? How about delaying enforcement for three days because there's a hurricane or something? Okay, sure. What about delaying it months? And then renewing the delay? It's pretty easy to imagine that going wrong someday. So, how do we codify a rule that balances these conflicting things?
Finally, who's responsible for coming up with a clear set of rules? I think most people would assume it's the Supreme Court's job to figure it out. The problem is that SCOTUS has rules about what they can consider and when. Someone needs to have standing to sue POTUS and grounds to sue on. I'm not sure that POTUS NOT enforcing a law violates any existing law. But I'm not a constitutional scholar. I just don't know and that's why I think Apple or Google would be pretty crazy to put TikTok back in their app stores relying on this non-enforcement order as safe harbor.
> There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all.
In addition to your example regarding immigration, arguably the entire legal/medical marijuana industry in various states depends entirely on exactly this.
1) Federally, marijuana is still a Schedule I drug. Congress by way of delegation to the DEA has declared marijuana has no accepted medical uses and a high risk of addiction.
2) Sale and distribution of controlled substances is a federal crime. These businesses operate openly and with the tactic approval of the state in which they operate.
3) Wickard v Filburn established th reach of federal authority into exclusively intrastate commerce.
So the only way these business can continue to operate is if the president directs federal law enforcement to not enforce the drug laws.
This is (IMO) a good reason why the degree to which our political process has come to rely on EOs is a bad thing. We've just accepted that congress can apparently do nothing (except apparently ban TikTok) and so we just accept that every 4 years, the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
Ultimately, the govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Law enforcement being responsive to an uncodified social contract is a healthy thing.
> In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
I disagree. I think the TikTok ban itself has proven congress can absolutely pass laws when it wants to. Congress can do its job when it’s in their interests to do so. But the voting public generally doesn’t hold them to their responsibilities. We’re more comfortable with the speed of executive orders rather than the security of the legislative process. Sure, congress had ridiculously and historically low approval ratings… and yet the incumbents keep getting re-elected. I would argue the recent successes of the various “tea party” candidates (both electorally and legislatively) is the result of some part of the voting public deciding to hold their candidates responsible for their jobs. That their successes are not necessarily in the interests of the majority is a consequence of the majority not holding their own candidates responsible for their jobs
> govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced.
Yes, I agree that will always be true - to some extent. And, sometimes, it's generally a good thing - up to a point. However at other times and places, like the Southern states in the Jim Crow era, having law enforcement's personal opinions influencing which laws get enforced has gone very badly.
While I certainly hope the pervasive excesses of the Jim Crow south will never be repeated, there have continued to be a variety of lapses and regressions in limited areas about once a decade. So, I don't think it's safe to assume they won't continue in the future. That means we'll keep needing a codified system enabling latitude in some aspects of enforcement while also punishing transgressions. No doubt, this is hard stuff.
> Congress has proven broadly incapable of passing or updating laws
Here's a tangential point that I'll mention anyway. As you said, when it really wants to, congress is perfectly capable of passing laws quite quickly. It's just that in our present very evenly divided political climate, there's no strong consensus mandating action for a lot of issues. In the absence of a significant percentage of the population, like at least two-thirds, wanting congress to act, congress is correct in not acting. There are now a substantial number of voters who vote with an intentional strategy of maintaining congressional gridlock. For them, the current situation of congress being unable to pass many significant or sweeping new laws isn't a bug, it's "the will of the people" (or at least those 'people').
> even when polling shows a strong majority consensus for a new direction.
I'm skeptical that the things which have a strong majority consensus are also the things which congress can realistically act on and things which voters want congress to act on. And all three need to be true. There are quite a few things I personally think would make the world a better place if the majority of people would do them voluntarily BUT I would never want congress to force these good ideas on other consenting adults by law. So, I would answer a poll strongly in the affirmative about what people should do - but also not want congress to force anyone to do it - and polls never make that distinction.
Agreed. The drug enforcement example is a good one and there are a bunch of others too.
> the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
Yes, the expansion of powers which recent presidents have engineered is deeply worrying. Each president (from both parties) has used everything they inherited from the previous president and then each has expanded their powers a little more with no clear authority to do so. James Madison would be appalled at the scope of today's presidential powers, as would all the founders (except maybe Alexander Hamilton who wanted to make the presidency a lifetime office and sort-of king-like - although maybe even Hamilton would be wondering if his Imperial presidency has gone a little too far :-))
On the other hand some of the founding father would probably be proud how dysfunctional and corrupt the Federal government is becoming though. Especially they’d welcome the politicization of the civil service and the return of the spoils system.
It's one thing to say "I'm not going to enforce this law" - many presidents of both parties have done this to varying degrees.
But an EO can't just cancel a law, and anyone who breaks it would still be legally liable. Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
> many presidents of both parties have done this to varying degrees.
Agreed. The interesting question is by what authority presidents are permitted to do that - and to what extent?
> But an EO can't just cancel a law, and anyone who breaks it would still be legally liable.
Agreed on both points. The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
> Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
Yes, the particulars of this law's context have meant there are third-parties who are voluntarily enforcing the provisions of the law which the Justice Department has been ordered not to enforce. But that's just a random aspect of the present situation. It's easy to imagine other similar laws in the future which could only be enforced directly by the government - and the government refusing to do so, has the same effect as the law being cancelled. So, we still have a systemic issue.
> One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
I didn't know that. Not being a Tiktok user, I'm not aware if it's currently still working for those in the US who already had the app installed.
> The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
If the Justice Department changes its mind (due to a change of administration or popular sentiment, for example) before the statute of limitations runs out, they can pursue a case for actions that happened during this non-enforcement period. Something being made criminal may[1] also open up new avenues of civil liability, which can be brought to court by anyone actually harmed.
[1] I don't really know how much civil and criminal law interact like this; that's a question for someone with a law degree.
It's a question I find fascinating for several reasons. First, recent presidents of both parties have all danced near, around and over this line to some extent (so we need to address it). Second, there's little constitutional guidance on the question and existing policy and precedent are sparse and inconsistent. Third, I'm not sure what the proper mechanism might be for resolving the question - or if there even is one. Fourth, I'm not entirely sure what I think the answer should be. And all that makes this super interesting.
To be clear, I'm ONLY interested in this question from a long-term, system-design perspective. It doesn't matter who the current president is or what the specific law regards. Any useful answer needs to work just as well if it's Biden ordering non-enforcement of certain immigration laws or Trump ordering non-enforcement of a TikTok ban. So please set aside the current context and any partisan preferences and consider it purely as a constitutional issue about rule of law.
In terms of what the rule should be when some president 20 years from now orders an agency to not enforce some law, I can see it both ways. I think presidents should have some discretion in how the agencies they manage enforce laws. It just seems pragmatic to have some latitude in how enforcement is implemented because situations can vary. But should that latitude extend to just ignoring the law? How about delaying enforcement for three days because there's a hurricane or something? Okay, sure. What about delaying it months? And then renewing the delay? It's pretty easy to imagine that going wrong someday. So, how do we codify a rule that balances these conflicting things?
Finally, who's responsible for coming up with a clear set of rules? I think most people would assume it's the Supreme Court's job to figure it out. The problem is that SCOTUS has rules about what they can consider and when. Someone needs to have standing to sue POTUS and grounds to sue on. I'm not sure that POTUS NOT enforcing a law violates any existing law. But I'm not a constitutional scholar. I just don't know and that's why I think Apple or Google would be pretty crazy to put TikTok back in their app stores relying on this non-enforcement order as safe harbor.