Comment by hammock
1 day ago
Isn’t that the whole definition of “executive branch”? They are given (by we the people) the power to choose how to execute the laws. And we elect them.
The alternatives I can think of are for laws to be executed at the whim of an algorithm, a king, a more local executive like the governors of each state, or a more distant foreign executive like the UN
No, the executive branch has a responsibility to execute the law. It's not a privilege. We elected them to perform a duty on our behalf. Do you understand the difference?
Isn't discretion a foundational principle in the exercise of the executive's functions? Or is discretion reserved only for the judiciary?
No.
Article 2, Section 3 of the US Constitution: "[The President] shall take Care that the Laws be faithfully executed"
The judiciary doesn't have discretion as in it has been "granted" discretion. It de facto has a high degree of discretion because the act of judging a case necessarily entails a judgment of the laws.
Judicial review is a functional necessity. It's a necessary downstream consequence of simply having a Constitution as the supreme law.
The analog to the executive is that the executive naturally has finite resources to enforce law, and so as a matter of functional necessity it has some degree of discretion. That is not discretion to say "I disagree with this law and so am choosing not to enforce it," but the discretion to say "there are other priorities that are more important."
2 replies →
The executive only has discretion if the law says they do. If the law says they must or shall do something, they must do that thing. If it says they MAY do something or otherwise explicitly gives them discretion in making a decision, then yeah, they have that discretion
But it's not a given that they can just decide what laws they will or will not enforce or follow