Enforcement discretion and publicity

Yesterday, Cass Sunstein, a Harvard law professor and former Obama administration regulatory czar, suggested that the Supreme Court may have just tipped its hand about the legal debate surrounding delays of various provisions of the ACA.

In its decision about the EPA’s authority to regulate greenhouse gases, the Court took the administration to task for trying “to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” As Sunstein observes,

In the context of the Affordable Care Act … there have been heated controversies over the Obama administration’s efforts to delay implementation and to create other forms of flexibility. The Department of Health and Human Services has, for example, provided “transition relief” by postponing deadlines for complying with some of the act’s requirements. Some critics who have objected that the executive branch has no power to change “statutory terms that turn out not to work in practice” will take yesterday’s opinion as an endorsement of their views with respect to the Affordable Care Act.

At the same time, the court appeared to identify an acceptable approach to increasing flexibility. It said that an executive agency is permitted to exercise its discretion by announcing, in public, that it will not enforce certain requirements. In the court’s view, a refusal to enforce legal requirements is not the same as an effort to alter those requirements.

I think Sunstein may be over-reading the case a bit, but I want to focus here on his suggestion that an agency has more flexibility “to exercise its discretion by announcing, in public, that it will not enforce certain requirements.”

I take it that the relevant clause here is “in public.” Maybe the thought is that, by announcing an enforcement strategy, the administration makes itself accountable for a decision to decline to enforce a statute. Secret decisions not to enforce may be more constitutionally troubling than public ones.

But doesn’t this get things backward? Publicity, it seems to me, can transform a routine exercise of enforcement discretion into a constitutional violation. As I explained in my New England Journal of Medicine piece on the legality of the ACA delays:

[E]ven if the administration lacked the capacity or desire to take action against those who failed to comply with the ACA, it could have remained silent about its enforcement plans. Most employers and insurers would still have felt obliged to adhere to the law. Because the administration wanted to relieve them of an unwanted burden, however, it publicly committed itself to nonenforcement, thereby licensing employers and insurers to disregard the ACA’s terms.

Publicity, in other words, enabled the administration to do what the Court just condemned: “to revise clear statutory terms that turn out not to work in practice.” When publicity is at the core of a constitutional violation, how can more publicity be its cure?


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