The President's Enforcement Power

October
2013
Kate Andrias

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus reveals the need for institutional design reforms—namely more coordination across agencies and greater disclosure of enforcement policy. The seeds for such reforms can be found in several recent efforts that have yet to be made systematic. Concerns about politicization of law enforcement should not override the considerable benefits that would derive. Rather, by acknowledging the President’s role in, and responsibility for, enforcement, we can better ensure the structure and transparency that promote appropriate presidential influence.

This article appears in the October 2013 Issue: Volume 88, Number 4