The danger, Price says, is that the inevitable non-enforcement of many federal criminal laws will establish “a new constitutional norm of unbounded executive discretion” beyond the criminal justice system. Price says the enforcement discretion exercised in the context of the resource-constrained criminal justice system provides “no support for presidential authority to decline enforcement with respect to any other given civil regulatory regime, such as the Affordable Care Act.”

The difference is between priority-setting and policy-setting, the latter being a congressional prerogative because of Congress’s primacy in lawmaking. Absent “a clear statutory basis, an executive waiver of statutory requirements” is “presumptively impermissible.”

It has, however, become “a nearly irresistible temptation” for presidents to infer permission from the courts’ abandonment of judicial review that limits Congress’s power to delegate essentially legislative powers to the executive branch. So, Price asks: “If President Obama may postpone enforcement of the ACA’s insurance requirements and employer mandate, could a subsequent president ignore the Affordable Care Act altogether?”