Comment by skinfaxi
21 hours ago
Isn't discretion a foundational principle in the exercise of the executive's functions? Or is discretion reserved only for the judiciary?
21 hours ago
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."
I was thinking about it more like if cops didn't have discretion, they would have to arrest for every minor offense and let the courts sort it out. After more reading it seems there are differing interpretations of the "Take Care" clause. Thank you for taking the time to explain.
> Beyond these constraints, the Clause raises several vexing questions. For instance, must the President enforce those laws she believes are unconstitutional? Some scholars argue that Presidents must enforce all congressional laws, without regard to his or her own constitutional opinions. Yet modern Presidents occasionally exercise a power to ignore such enactments on the grounds they are not true “laws” subject to the faithful execution duty. In so doing, they somewhat mimic the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act on the grounds that it was unconstitutional.
https://constitutioncenter.org/the-constitution/articles/art...
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