Should Republicans Embrace the Obama Non-Enforcement Doctrine?

The Obama Non-Enforcement Doctrine holds that a president is not required to implement or enforce laws passed by Congress with which he disagrees. Obama’s use of the doctrine sets an interesting precedent for the next chief executive, who likely will be a Republican.

For example, a Republican could adopt the Obama Non-Enforcement Doctrine with regard to corporate income taxes by directing the IRS to cease all efforts to enforce those portions of the Internal Revenue Code relating to income taxes payable by corporations. This would be great public policy. My law school tax professor once remarked that there is no intellectually respectable argument for the corporate income tax, other than the fact that it employs an army of lawyers and accountants. Repealing, in effect, the corporate income tax would give the economy an enormous shot in the arm.

Or, if a Republican president didn’t want to go that far, he could stop enforcing those provisions of the tax code relating to taxation of repatriated profits. This is an area where the right policy is obvious, but Congress has failed to act. Without the tax on repatriated earnings, somewhere between $1 and $2 trillion would flow back into the American economy.

Environmental policy is another area where the Obama Non-Enforcement Doctrine could be applied. The Environmental Protection Agency, as now operated, probably does more harm than good. A Republican president could suspend enforcement of all federal environmental laws, thereby putting the EPA out of business, and remit all environmental regulation to the states and to private actions sounding in nuisance and trespass. This would result in a major improvement in the nation’s environmental policies. Or, if he preferred, the president could single out for non-enforcement some, but not all, environmental laws.

Under the Obama Non-Enforcement Doctrine, a president can’t enact new laws by decree, but he can exercise his discretion by not enforcing existing laws. This means that the doctrine is a one-way ratchet with an inherently libertarian bent. Given a little thought, conservatives could come up with a long list of laws that we would be better off without. Each one would be a candidate for the Obama Non-Enforcement Doctrine.

My guess is that if a Republican president applied Obama’s doctrine a couple of times, the Democrats would say “uncle.” There would be bipartisan support for a constitutional amendment to make it beyond dispute that the Obama Non-Enforcement Doctrine is defunct. That goal could be accomplished through a constitutional amendment requiring that the president “take care that the laws be faithfully executed,” or some such language. But in the meantime, Republican presidents could use Obama’s precedent to good effect.

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