At Josh Blackman's Blog, Josh Blackman: Congress, Not The President, Can Exempt States From Federal Marijuana Laws. From the introduction:
Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly be justified under the auspices of (our favorite) “prosecutorial discretion.”
Professor Blackman goes on to note that the recent spending bill (or at least a version of it — I'm not sure if this was in the final) prohibits the use of funds to "prevent … States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana," and adds that such congressional action is the right way to establish a categorical exception from enforcement.
But let's back up and ask why he thinks "such a categorical suspension of the law can hardly be justified" as prosecutorial discretion. (I find this a better starting point for thinking about executive enforcement discretion than immigration non-enforcement, which has multiple complications). I look at it this way: (1) Congress has not given the President the resources to enforce the federal marijuana laws against all violators; (2) especially where there is a lack of resources, the President has discretion to prioritize enforcement; and (3) prioritizing (as a general matter) can be done on a case-by-case basis or categorically.
I don't think anyone disagrees on (1) or (2), so the only issue is (3). But where in the Constitution is there a rule that discretion cannot be exercised categorically? Note that this is not a situation in which the President is refusing to enforce a law altogether. The President is only declining to enforce as to some people while enforcing as to others (which everyone agrees he can do). The only issue is how the group of people who benefit from non-enforcement is identified.
The only arguably relevant constitutional text is the take care clause. But that clause on its face does not address the categorical/case-by-case question. It may well be relevant to a decision not to enforce a law at all — but that is not the issue here. Taking care that all federal laws are faithfully executed, when not enough resources are provided to do so, necessarily involves some non-enforcement, and the only issue here is how that non-enforcement is directed. The take care clause does not say anything on that point.
Perhaps there is some history that prosecutorial discretion was understood purely as a case-by-case power, though I'm skeptical it exists. For example, Zachary Price's very thoughtful and thorough article on enforcement discretion does not, on my reading, make a persuasive case that there is. Professor Price argues forcefully that categorical non-enforcement should not be allowed, but it seems more a functional than a historical argument. Because opponents of categorical non-enforcement want to impose a limit on the President that does not appear on the face of the text, the burden should be on them to establish a more restrictive meaning derived from historical context. I do not see that the burden has been carried.
Posted at 6:16 AM