The Rise of Discretionary Legality

by Rich Lowry

A new feature or our government is what might be called discretionary legality. Checked legislatively after his first two years, Obama stretched the law beyond the breaking point to continue to implement his agenda on all fronts.

Enter Donald Trump. He now gets to pick and choose which of these illegal initiatives to keep or discard or unwind on a timetable to his liking. He’s been pretty aggressive in rolling them back, which is good. But there is a huge element of discretion involved.

He set up a political timeline for rolling back DACA and has reportedly said he may decide to further extend DACA. It hard to see how such a decision would accord with the law — the very illegality of DACA becomes a permission slip to end it immediately, slowly, or not at all. The same dynamic was at play with the illegal cost-sharing-reduction payments to insurance companies. Trump keep making them until he decided not to, and if different voices had prevailed with the administration, he might be making them still.

This is obviously not how the system is supposed to work. But Obama made extra-legality the playing field of our politics in many areas. And with the Senate now largely AWOL, this is the only field where Trump can reliably put up points — or not, as suits him.

 

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