At Executive Functions, Jack Goldsmith: Trump’s Continuing Illegal Refusal to Enforce the TikTok Ban. From the introduction:
President Trump [last week] issued a new executive order that extended two prior executive orders that declined to enforce the Protecting Americans From Foreign Adversary Controlled Applications Act, i.e., the TikTok ban. That statute made it unlawful, as of January 19, 2025, for U.S. firms to provide services to distribute, maintain, or update TikTok unless its operation in the United States is severed from Chinese control. The administration’s serial refusal to enforce the TikTok ban, and its related efforts to immunize providers from the effects of the law, are blatantly unlawful. Below I explain why and assess implications.
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The Take Care Clause says that the president “shall take Care that the Laws be faithfully executed.” The Clause has a protean quality. It is the source of the president’s duty to comply with the law and a source of the president’s power to interpret and enforce the law. It is also the basis for the president’s discretion over law enforcement, criminal and civil. As the Court said in Trump v. United States, quoting Transunion, “Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’”
The Court has given the executive branch very wide latitude in its exercise of enforcement discretion, often through the assumption that Congress in enacting statutes implicitly provided for that discretion. And the executive branch has exploited this latitude. As Zachary Price in his definitive treatment documented, discretion to not enforce the law lay behind many of President Obama’s most controversial policies, including the refusal to enforce certain marijuana laws, and the policies to delay enforcement of aspects of the Affordable Care Act, and to decline to remove certain undocumented immigrants who entered the United States as young children.
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As I recently explained, the Court has justified this wide presidential latitude to enforce the law “as a pragmatic accommodation of (i) inevitable enforcement choices and tradeoffs in the face of over-legalization by Congress, (ii) changing public-welfare needs, (iii) executive branch resource constraints, and (iv) the judiciary’s ‘lack [of ] meaningful standards for assessing the propriety of enforcement choices.’” The controversial examples above tended to be justified by presidents on the basis of some combination of enforcement prioritization and resource constraints.
And yet there are limits. The Supreme Court’s classic statement on limits came in 1838 in Kendall v. United States. There the Court stated: “To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the constitution, and entirely inadmissible.” It denied that the Take Care Clause gave the president a “dispensing power”—“the authority to license illegal conduct”—or “power to forbid [the laws’] execution.” More recently, the Court in Heckler v. Chaney (1985) stated that federal agencies cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” And the Court said in United States v. Texas (2023) in a standing context that “an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion.”
It has never been clear where the line is between the president’s broad permissible enforcement discretion and a president’s illegal refusal to enforce the law. As OLC once said, “The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is ‘faithful[]’ to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules.”
But wherever that line is, and there is a line, the refusal to enforce the TikTok ban crosses it. …
And from later on:
The refusal to enforce the TikTok ban is unlawful because it is a refusal to enforce a law simply on the ground that the president does not like it. As noted above, and making this illegal non-action much worse, the administration in the original EO and the one issued today sought to ensure that private firms can never face any liability for violating the statute. This is a clear example of the dispensing power that Kendall forbade.
Trump’s moves extend far beyond non-enforcement and amount to a claim that the president has authority, at the flick of a pen, to destroy all consequences of a law enacted by Congress and upheld by the Supreme Court…
Agreed. In my view a key defect in the TikTok non-enforcement is exactly that it purports officially to make a law not a law by a formal executive order. That was also in my view the core constitutional problem with President Obama's immigration non-enforcement, for example with respect to childhood arrivals. Presidents do of course have prosecutorial discretion to adopt prosecution policies that prioritize some enforcement over others. But they do not have power to say a law is not a law. That, as Professor Goldsmith says, is the dispensing power, which some English kings claimed but which the take care clause was adopted in large part to reject.
(Via How Appealing.)
Posted at 6:17 AM