The Politics of Non-Enforcement

When a new administration takes office, it rarely has the time or political capital to repeal every law or regulation it dislikes. But it has a quieter tool at its disposal: the simple, profound power of looking the other way.

Executive branch agencies possess what is known as administrative enforcement discretion. Rooted in the Constitution's Take Care clause, this is the practical authority to decide how resources are allocated, which violations to pursue, and whether to initiate enforcement actions at all. The Supreme Court has generally treated these decisions as absolute, granting agencies broad leeway when deciding how to deploy their limited personnel and funds.

This discretion allows an incoming administration to fundamentally alter the regulatory landscape without ever touching the formal rulemaking process. Instead of rewriting a statute, officials can implement regulatory freezes, postpone litigation deadlines, or use proposed federal budgets to quietly starve undesirable programs—such as those targeting misinformation or environmental justice—of the resources they need to function.

Yet this power sits on unstable constitutional ground. While the executive branch often claims absolute authority over non-enforcement, legal scholars and courts frequently debate where discretion ends and abdication begins. There is a fine line between prioritizing scarce resources and adopting a sweeping policy of non-enforcement that amounts to ignoring a statutory duty enacted by Congress. As long as that boundary remains contested, the politics of non-enforcement will remain one of the most effective, and most fragile, levers of presidential power.