The Letter of the Law: Administrative Discretion and Obama’s Domestic Unilateralism

Abstract In his 2014 State of the Union address Barack Obama pledged to act without Congress on a variety of fronts, following up his “we can’t wait” campaign of unilateralism before the 2012 election. The partisan furor this engendered tended to obscure the longstanding efforts of presidents to “faithfully execute” the law in a manner that aligns with their policy preferences. This paper examines the broad logic of those efforts, and delineates five areas where the Obama administration has been particularly aggressive: in its (1) recess appointments; (2) refusal to defend federal law (notably, the Defense of Marriage Act) in court; (3) use of prosecutorial discretion in declining to pursue violations of immigration and drug laws; (4) use of waivers; and (5) its utilization of the regulatory process to interpret the meaning of statutes, as with the Clean Air Act and the Affordable Care Act. Presidents do have flexibility in many cases; but this ends where they seek to alter the plain “letter of the law.”