The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.
This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the Supreme Court’s reasoning supports a finding of congressional institutional standing. This Note further contends that it is normatively preferable for the judiciary to police the boundaries of each branch of government in instances of executive nonenforcement and apply the Constitution’s mandate that the President take care that the laws be faithfully executed. This maintains separation of powers and prevents one branch from unconstitutionally aggregating the power of another.
Bethany R. Pickett,
WILL THE REAL LAWMAKERS PLEASE STAND UP: CONGRESSIONAL STANDING IN INSTANCES OF PRESIDENTIAL NONENFORCEMENT,
Nw. U. L. Rev.