At Josh Blackman's Blog, Josh Blackman: The Take Care Clause and Prosecutorial Discretion (continuing this discussion). Here is his core point, which I think has not been given the attention it deserves in other discussions of the issue:
I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.” ...
... It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed.
So as I understand it, then, the problem is not so much that the President is refusing to enforce as to certain categories of offenders, but that he is publicly announcing that he is refusing to enforce as to certain categories of offenders. It is the public announcement that undercuts the congressionally intended deterrence.
This is a better textual argument than I've seen elsewhere on the point. But I'm not sure that it doesn't assume its conclusion. That is, it assumes that Congress wants the residual threat of non-enforcement to remain. But what if Congress assumes the President will use categorical non-enforcement to mitigate the unfairness of Congress' (poorly drafted) laws, so that Congress does not have to think too carefully about what it is doing? Speculation about what Congress intended is a dubious move, and appeals to legislative history don't make me feel any better about it.
I continue to think it's hard to make much headway here on text alone without a historical understanding of executive non-enforcement power (which I have not conclusively investigated).
RELATED: Professor Blackman comments here on the district court decision (sort of) finding the President's immigration non-enforcement policy unconstitutional.
Further thoughts on the decision at Volokh Conspiracy: Ilya Somin, A poorly reasoned federal district court opinion striking down Obama’s executive order on immigration and Orin Kerr, Unless I’m missing something, this is an exceedingly strange opinion (the latter is especially amusingly harsh).
As Professor Somin notes, the core of the court's constitutional argument is that the policy is unconstitutional because
(a) It provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications rather than case-by-case examination; and
(b) it allows undocumented immigrants, who fall within these broad categories, to claim substantive rights.
The first point is, I think, sort of what Professor Blackman and I have been discussing, and I'm inclined to think it is not a constitutional problem. (Professor Somin makes some good points against the court's view in his post.) The second point I think, if true, is a very big constitutional problem, but I'm not sure if it's true (Professor Somin thinks it's not). I'll return to this issue later. However, it is one reason I think it more productive to discuss non-enforcement in the context of the federal marijuana laws, where this issue plainly doesn't exist.
AND MORE: Timothy Sandefur at Freespace: The President shall take care that the law be faithfully executed. Or ignore it. Whatevs. (criticizing an earlier article by Professor Somin on textual/historical grounds).