{
  "id": "R43708",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R43708",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 434045,
      "date": "2014-09-04",
      "retrieved": "2016-04-06T20:07:25.907339",
      "title": "The Take Care Clause and Executive Discretion in the Enforcement of Law",
      "summary": "The Take Care Clause would appear to stand for two, at times diametrically opposed propositions\u2014one imposing a \u201cduty\u201d upon the President and the other viewing the Clause as a source of Presidential \u201cpower.\u201d Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law. \nIn situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination\u2014generally holding that these nonenforcement decisions are \u201ccommitted to agency discretion\u201d and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an \u201cagency\u2019s decision not to take enforcement action should be presumed immune from judicial review.\u201d   \nHowever, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination \u201cwhere the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,\u201d or where the agency has \u201c\u2019consciously and expressly adopted a general policy\u2019 that is so extreme as to amount to an abdication of its statutory responsibilities.\u201d \nAs such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing \u201cmeaningful standards\u201d for the manner in which the agency may exercise its enforcement powers.  \nNevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.",
      "type": "CRS Report",
      "typeId": "REPORTS",
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      "topics": []
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  "topics": [
    "Constitutional Questions"
  ]
}