Alito, J., dissenting
What the majority has done is to apply Oliver Wendell Holmes’s bad-man theory of the law to the separation of powers. Under Holmes’s theory, as popularly understood, the law consists of those things that a bad man cannot get away with.[1] Similarly, the majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception of “the executive Power.” Art. II, §1. The Constitution, instead, requires a President to “take Care that the Laws be faithfully executed.” §3 (emphasis added).
Neither the Solicitor General nor the majority has cited any support for the proposition that a President has the power to disobey statutes that require him to take enforcement actions, and there is strong historical evidence to the contrary.[2] The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes.[3] After James II was deposed, that changed. The English Bill of Rights of 1689 emphatically rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and
- ↑ See O. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459–460 (1897).
- ↑ See Z. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 689–696 (2014); R. Delahunty & J. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Texas L. Rev. 781, 797–804 (2013) (Delahunty & Yoo, Dream On); see also E. Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Env. L. J. 461, 472–474 (2008).
- ↑ See R. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259, 277–281 (2009) (Reinstein, Limits).
