Zachary S. Price (University of California Hastings College of the Law) has posted Seeking Baselines for Negative Authority: Constitutional and Rule-of-Law Arguments Over Nonenforcement and Waiver (The Journal of Legal Analysis, May 2016) on SSRN. Here is the abstract:
Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.
Professor Price owns this field.
Posted at 6:31 AM