Daniel B. Rice (U.S. Court of Appeals for the D.C. Circuit) has posted Nonenforcement by Accretion: The Logan Act and the Take Care Clause on SSRN. Here is the abstract:
The Logan Act is a centuries-old law designed to bolster executive power. Yet Presidents have uniformly declined to don the statute’s vintage armor. Countless enforcement opportunities have yielded precisely zero prosecutions; the Act has ceased to function as law in any meaningful sense. A recent resurgence in Take Care Clause scholarship has overlooked this unparalleled passivity. Scholars agree that although Presidents may not refuse to enforce statutes on policy grounds, exercising prosecutorial discretion on a case-by-case basis is perfectly permissible. The Logan Act’s slow demise offers an important caveat: that laws can be nullified through the repeated use of individualized enforcement discretion. I call this previously unexplored phenomenon “nonenforcement by accretion.”
This Article contends that the gradual—even accidental—erasure of an entire statute presents a far greater threat to the idea of legislative policymaking supremacy than does the advance signaling of cabined enforcement priorities. I highlight the problem’s magnitude by chronicling Presidents’ refusal to remedy even archetypal Logan Act violations in the face of deafening enforcement demands. I then identify several mutually reinforcing imperatives that vastly overdetermine the statute’s spectacular torpor. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests; when each administration remains inert for its own reasons, it is not obvious whether a law has been gutted because of policy differences, constitutional objections, or otherwise. The piece concludes by arguing that executive efforts to channel modern majorities—as by neglecting to enforce outmoded laws—can in fact thwart long-term democratic responsiveness.