Seeking Baselines for Negative Authority: Constitutional and Rule-of-law Arguments Over Nonenforcement and Waiver

Recent controversies have called attention to the potential significance of negative executive authority—the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.