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01/21/2016

Josh Blackman and Randy Barnett on Texas v. United States
Michael Ramsey

Josh Blackman discusses the Supreme Court's grant of cert in the immigration enforcement case Texas v. United States and provides links to his prior articles here.  And here he is on PBS News Hour.  And in National Review: President Obama, Meet the ‘Take Care’ Clause: The Supreme Court orders the president to prove that he is faithfully executing the law.  From the latter:

The mere fact that the Court asked the government to brief this question in no way suggests how it will rule. But at a minimum, the justices recognized that the resolution of this foundational case requires a full accounting of the separation of powers — including the president’s own testament. However the Court rules in this case, it will set a powerful precedent for presidents of both parties, who seek to rewrite the law without Congress. In 2016, the president of the United States will at last meet the Take Care clause.

(On the meaning of the Court's briefing request, Gerard Magliocca has an interesting theory here).

At Volokh Conspiracy, Randy Barnett: The President’s Duty of Good Faith Performance.  From the core of the argument:

According to this theory of good faith performance, “scarcity of enforcement resources” is an appropriate motive for exercising prosecutorial discretion, but disagreement with the law being enforced is not. The same holds true with exercising prosecutorial discretion to enforce marijuana laws in states that have made it legal under state law. Prioritizing seriousness of offenses is one thing; disagreeing with the policy of the Controlled Substances Act (as I do) is another.

But how do you tell the difference? Here is where the President’s previous statements about the scope of his powers, about his legislative priorities, and his frustration with Congress’s “inaction” become legally relevant. His prior statements go to the President’s state of mind or motive, which is dispositive of the issue of “good faith.” If the President believed that the law precluded these actions but he was exercising the discretion he was given under the law to accomplish them nonetheless, he was abusing his discretion and acting in bad faith. Whether or not the law gave him discretion is not the answer to the question, it is the problem that a doctrine of good faith performance is devised to address.