“Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle”

The title of this post is the title of this new paper authored by Sam Kamin now available via SSRN. Here is the abstract:

This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws.  I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion.  I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes.

I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States.  I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine.  Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.