Take Care Clause and Executive Discretion in the Enforcement of Law [September 4, 2014] [open pdf - 452KB]
"The Take Care Clause would appear to stand for two, at times diametrically opposed propositions--one imposing a 'duty' upon the President and the other viewing the Clause as a source of Presidential 'power.' 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. [...] In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination--generally holding that these nonenforcement decisions are 'committed to agency discretion' and therefore not subject to judicial review under the Administrative Procedure Act. [...] However, 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 'where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,' or where the agency has ''consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities.' As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing 'meaningful standards' for the manner in which the agency may exercise its enforcement powers. Nevertheless, 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."
CRS Report for Congress, R43708