In yesterday's WSJ, Kimberly Strassel had a great column on President Obama's decision to rewrite the nation's immigration law via "prosecutorial discretion." Her premise is that a Republican has won the 2016 POTUS election and his advisers have suggested a few laws the new POTUS might want to stop enforcing, such as:
We’ve been analyzing the Obama team’s justifications. Some are p-r-e-t-t-y creative, but they boil down to this: Whenever a law is “unworkable,” or inadequately “funded”—and Congress won’t do anything—the president gets to act! How is that for new precedent? ...
Prosecutorial discretion: Love this. Your top item? Cutting taxes. We have two words and one number for you: Tax Code, 73,954 pages. Is there a more unworkable law? ROFL! We’ve got an executive order ready instructing IRS agents not to enforce the code on any person or company who refuses to pay more than our new rates. Goodbye Alternative Minimum Tax, death tax, capital gains, restrictions on nonprofits. Hello, flat tax on a postcard.
And so on.
The President doesn't have the same powers over the Securities and Exchange Commission that he does over the Justice Department, of course, but still the President could do a few things to unilaterally unwind some of the damage that the Sarbanes-Oxley and Dodd-Frank laws have done. First, the Justice Department could be told to exercise prosecutorial discretion not to pursue criminal cases arising out some of the worst provisions of those laws. No more criminal cases under SOX section 906, for example. No more criminal cases to be brought under Section 807 where the defendant did not act with scienter and no more cases in which the alleged fraud was not committed in connection with the purchase or sale of a security.
As for Dodd-Frank, it's replete with provisions that are "unworkable." The Bureau of Consumer Financial Protection is a travesty, of course, so stop enforcing the criminal provisions of Dodd-Frank that relate to it.
The most important thing the new President could do, of course, would be to install SEC Commissioners--especially a Chairman--who are equally committed to exercising prosecutorial discretion over the agency's civil enforcement program so as to gut the more egregious provision of SOX and Dodd-Frank. Maybe starting with conflict minerals disclosure?