The Obama Administration has faced significant scrutiny following a series of determinations in which the relevant federal agency charged with the implementation of a given statute has chosen to limit or delay the enforcement of specific provisions of federal law. These nonenforcement, under enforcement, or delayed enforcement decisions have generally been implemented through stated agency policies directing officials not to take action to ensure compliance with statutory requirements that federal law imposes upon a third party. Notably, these policies have been grounded in practical or policy considerations, and have not been based on any argument that the statutory provisions themselves are unconstitutional or otherwise invalid. Instead, the Administration has largely justified its inaction as consistent with a proper exercise of enforcement discretion, a legal doctrine that generally shields executive branch enforcement decisions, including the determination of whether to initiate a criminal, civil, or administrative enforcement action, from judicial review. This report focuses on two distinct forms of enforcement discretion: prosecutorial discretion, exercised in the criminal context; and administrative enforcement discretion, exercised in the administrative context. The Department of Justice (DOJ) has cited prosecutorial discretion as the basis for its efforts to curtail the enforcement of the federal Controlled Substances Act (CSA) in states that have adopted both medical and recreational marijuana legalization initiatives. Although the possession, cultivation, or distribution of marijuana remains a clear federal crime, the DOJ has directed federal prosecutors to "not focus federal resources [] on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." Rather, U.S. Attorneys have been directed to prioritize investigative and prosecutorial resources on persons whose actions relate to identified federal priorities such as distribution to minors, the participation of criminal enterprises and cartels, or the use of marijuana on federal property. In 2012, the Secretary of Homeland Security relied on the doctrine of administrative enforcement discretion in a memorandum setting forth guidelines on how to "enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home." The directive provided that, rather than use limited agency removal resources on low priority deportation cases, immigration officers should exercise their discretion to forego enforcement actions, for at least a period of time, against a specific class of individuals who unlawfully entered the United States as children, have not committed certain crimes, and meet other key requirements. It has been argued, however, that the Secretary's memorandum contravenes statutory mandates under the Immigration and Nationality Act which, opponents of the policy assert, require that aliens who entered the country without inspection be "detained for removal proceedings." In 2013 and 2014, the Administration utilized enforcement discretion to justify delays in the enforcement of a number of provisions of the Affordable care act (ACA), including the law's employer mandate and minimum coverage requirements. These provisions were to take effect beginning on January 1, 2014. In July 2013, the Treasury Department announced that enforcement of the ACA's new excise tax on employers with 50 or more employees that fail to provide affordable health coverage (the "employer mandate") would be delayed for one year, until 2015. In February 2014, the Administration announced that employers with at least 50 but fewer than 100 full-time equivalent employees would have an additional year to comply with the mandate. Similarly, the Centers for Medicare and Medicaid Services announced in November 2013 that it was adopting a "transitional policy," under which health insurers can continue to offer coverage that fails to meet certain statutorily required minimum standards for private health insurance under the ACA without threat of federal enforcement consequences. In contrast to the Administration position, some Members of Congress have asserted that these unilateral Presidential nonenforcement determinations upset the separation of powers, harm Congress as an institution and a coordinate branch of government, and are in direct violation of the President's constitutional obligation to "take Care that the Laws be faithfully executed..." Although the House has held hearings addressing the issue and has approved legislation that would require the Administration to provide Congress with a report describing the legal grounds for any nonenforcement decisions, the Senate has not concurred with the House's objections. As a result, the House appears to be focusing on the judicial process as a means of addressing the Administration's nonenforcement policies. The ENFORCE the Law Act of 2014, which passed the House in March 2014, would establish an expedited process by which either house of Congress could file a lawsuit challenging a "formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed..." In addition, the House approved a joint resolution that would authorize the Speaker—through the House General Counsel—to file a lawsuit seeking "any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official's duties under the Constitution and laws of the United States with respect to implementation of any provision of the [ACA]." In light of these ongoing controversies, this report will address the President's general obligation to "take Care that the Laws be faithfully executed." The report will then discuss the limited role the judicial branch has traditionally adopted in reviewing discretionary enforcement decisions, including the decision to initiate a criminal prosecution or an administrative enforcement action. The report will conclude with a discussion of Congress's authority to restrict executive discretion in the enforcement of federal law. [H]e shall take Care that the Laws be faithfully executed... U.S. Constitution, Article II, §3 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. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law or regulation. The puzzling result is that the Clause has been invoked as forming the constitutional basis for both the President's obligation to enforce the law, and his discretion not to. It is beyond dispute that the President plays a significant role in the legislative process. The specific powers enumerated in Article II, §3 and Article I, §7 of the Constitution, along with the general vesting of "the executive power" in Article II, §1, provide the President with the authority to recommend legislation to Congress, communicate his opposition or support for legislation under consideration, and, ultimately, to either sign legislation that meets his approval, or veto that legislation which "he thinks bad." It is equally well established, however, that once a bill is enacted into law, the President's legislative role comes to an end and is supplanted by his express constitutional obligation under Article II, §3 to "take Care that the Law[] be faithfully executed." Although there was little discussion of the Clause at the Constitutional Convention, most scholars have agreed that, at a minimum, the Clause represents a repudiation of the royal suspending and dispensing power that had been historically exercised by English monarchs. James Wilson, delegate to the constitutional convention form Pennsylvania, summarized this view in characterizing the Clause as providing the President with the "authority, not to make, or alter, or dispense with the laws, but to execute and act the laws." The executive branch has agreed with this view, acknowledging that "the Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes." The Clause would appear then to prevent the President from simply disregarding or suspending laws enacted by Congress. Today, the Take Care Clause makes a significant contribution to the separation of powers. The constitutionally created distinction between the "faithful" execution of the law under Article II, and the "finely wrought" process for the creation of law under Article I §4, operates as a clear demarcation of the legitimate powers and responsibilities of both the President and Congress in our constitutional system. Just as Congress may neither enforce the laws nor improperly intrude into the President's execution of the same, the President and his subordinates may not create law by unilaterally disregarding, amending, or repealing a validly enacted statute. The ultimate power to legislate is a power possessed solely by Congress, and to permit the President the freedom to suspend, amend, or disregard laws of his choosing would be to "clothe" the executive branch with the power of lawmaking. A long line of Supreme Court precedent indicates the Court's consistent view that the Take Care Clause imposes a "duty" or "obligation" upon the President to ensure that executive branch officials obey Congress's commands, and, additionally, that the Clause does not provide the President with the authority to frustrate legal requirements imposed by law. The notion that the President and executive branch officers must "faithfully" implement and execute the law can be seen as early as the seminal case of Marbury v. Madison in 1803. Although Marbury is best known for Chief Justice John Marshall's discussion of the Supreme Court's power of "judicial review"—the authority of the Court to invalidate laws it determines to be unconstitutional— the case also contains strong language relating to the obligation of executive branch officials to comply with the law. In the final hours of his Presidency, John Adams had appointed William Marbury to serve as Justice of the Peace for the District of Columbia. Marbury's commission, however, was never delivered, and upon assuming office President Thomas Jefferson instructed Secretary of State James Madison to withhold the commission, thus denying Marbury the position.