Enforcement Discretion

No government has the resources to pursue every violation of every law, so prosecutors and agencies must choose. The Constitution's Take Care Clause requires the President to take care that the laws be faithfully executed, and courts have long recognized that this includes discretion over which cases to bring. In Heckler v. Chaney in 1985 the Supreme Court held that an agency's decision not to take enforcement action is presumed to be beyond review by the courts, because it involves weighing priorities and resources.

Presidents of both parties have used this discretion to set broad policies. The Obama administration's Deferred Action for Childhood Arrivals program in 2012 deferred deportation of people brought to the country as children, while a broader 2014 program was blocked by the courts. Justice Department memos in 2013 deprioritized prosecuting marijuana businesses that complied with state law. In United States v. Texas in 2023 the Supreme Court held that states lacked standing to challenge immigration enforcement priorities. In 2025 the President directed the Justice Department not to enforce, for months, a law requiring the sale or ban of TikTok while a sale was negotiated.

The limits are contested. Most scholars agree that the executive may set priorities and decline individual cases, but not announce that it will never enforce a law it dislikes, which would amount to a suspending power the framers rejected. Critics of broad nonenforcement policies, whichever party is in power, say they let Presidents rewrite laws without Congress, while defenders say limited resources make priorities unavoidable and that Congress can respond with funding or new legislation.