Can the executive branch instruct an agency to not enforce a law?
<p>Using the current discussion regarding the Johnson Act as an example <em>(unless there are more relevant examples)</em>:</p>

<p>Can the Executive branch instruct an administrative agency to not enforce or ignore a law that was enacted by Congress?</p>

<blockquote>
  <p>The Johnson amendment is part of the tax code, so to remove it would
  take an act of Congress. But President Trump can direct the IRS not to enforce that portion of the law, Herzig said. “Yes, technically, the only way to get rid of the Johnson Amendment is to have Congress repeal that portion of
  501(c)3. It doesn’t mean the executive branch doesn’t have tremendous
  power in the ability to decide whether they’re going to enforce the
  Johnson amendment.” <em><a href="https://www.washingtonpost.com/news/acts-of-faith/wp/2017/02/02/trump-said-hell-totally-destroy-the-johnson-amendment-what-is-it-and-why-do-people-care/?utm_term=.f23125057ae0" rel="nofollow noreferrer">Trump said he’ll ‘totally destroy’ the Johnson Amendment. What is it and why should people care? - The Washington Post</a></em> and <em><a href="https://apnews.com/9a239dae7022473fb0b0b58709504c05" rel="nofollow noreferrer">AP Explains: The fuss over Trump and the Johnson Amendment</a></em></p>
</blockquote>

<p>If a law is on the books, how can there be discretion in enforcing it?</p>

<p>Is there a difference in federal or state laws that are legislated?</p>

<p>Or in common law statutes?</p>

<p>Many executive branch enforcement/implementation decisions are discretionary, but not all of them. When implementation is mandatory, a writ of mandamus can be filed to carry out the act. </p>

<p>For example, the executive branch has a non-discretionary duty to release people from prison when their sentence expires and must carry out that law. </p>

<p>But, the executive probably does have the authority to decline to use its enforcement resources to prosecute or audit Johnson Act violations. However, this doesn't strictly mean that the law has no legal effect. For example, a voting member of a 501(c)(3) could probably sue to force the charity to comply with the Johnson Act, even if the IRS has a policy of making enforcement of that statutory section its lowest priority.</p>

<p>One example is the law passed by Congress <a href="https://www.law.cornell.edu/uscode/text/21/841" rel="nofollow noreferrer">21 USC 841</a> which prohibits production, sale or possession of marijuana: prosecutions have been suspended at the federal level by executive-branch decision, in certain states (Washington, Colorado, others no doubt). Obama indicated at the time that such prosecutions were not high priority, a determination that is uncontroversially within the discretion of any law enforcer. Likewise, the Immigration Accountability Executive Action reprioritized deportations to focus on felons and not children, also focusing on border crossings rather than people in and established.</p>

<p>Congress does not always spell out all of the details, when it passes a law, and may leave some aspects to the executive branch. If the law says "The Secretary of State shall...", then the Secretary of State shall. The degree of compulsoriness would depends on the specific mandate under the law. The law underlying the apolitical nature of 501(c)(3) exemptions is open to some interpretation regarding what it means for a corporation to intervene in a political campaign, thus Congress has implicitly granted the executive branch the power to say what that means, which it has. In 2002 there was a Congressional hearing on this rule, with the report <a href="https://www.gpo.gov/fdsys/pkg/CHRG-107hhrg80331/html/CHRG-107hhrg80331.htm" rel="nofollow noreferrer">here</a> that includes (starts with) the relevant IRS sub-director testifying as to the IRS's interpretation of the law at the time. The particular prohibited actions that are testified to are not specified by Congress, they are the result of rule-making authorized by 26 USC 501.</p>

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