My contribution to the 2013 Constitutional Law Schmooze poses a question about the downside of executive power, at least in the enforcement context. If executive power to enforce the law presupposes the duty to use it, what happens when the executive branch would rather not? Perhaps reframing the question will help. What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (“DOMA”) have in common, besides the letter “d”? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind—and at the outset, I set aside the “Just say no” response, which is an exercise of executive power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, “Fine, I’ll do it, but let’s just be clear—I don’t want to.” In the discussion that follows, I first flush out these responses with my five examples—the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of executive power.
Corinna Barrett Lain, Passive-Aggressive Executive Power, 73 Md. L. Rev. 227 (2013).