NONENFORCEMENT BY ACCRETION: THE LOGAN ACT AND THE TAKE CARE CLAUSE

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 entirely ceased to function as a criminal statute. A recent resurgence in Take Care Clause scholarship has overlooked this unparalleled passivity. Scholars agree that although Presidents may not categorically 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 erasure of an entire statute presents a far greater threat to legislative policymaking supremacy than does the advance signaling of cabined enforcement priorities. The Article highlights the problem's magnitude by chronicling Presidents' refusal to remedy even archetypal Logan Act violations in the face of deafening enforcement demands. It then identifies several forces driving the statute's deterioration. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests. In doing so, it unsettles the assumed distinction between policy-based nonenforcement and that anchored in constitutional objections. Finally, the Article argues that failing to enforce the Logan Act-a law that modern majorities would never enact-has in fact thwarted long-term democratic responsiveness.