At Volokh Conspiracy, Randy Barnett: The President’s Duty of Good Faith Performance. This is a long, insightful post that is hard to capture in a quick excerpt, but the basic idea is that the President's constitutional duty of faithful execution can be analogized to a contract party's duty of good faith performance:
What distinguishes good faith from bad faith performance of a contract is not the exercise of discretion but is the motive or purpose for which discretion is exercised. Does the party exercising its discretion under the contract seek to exercise the letter of the contract (the discretion) to evade its spirit (the rest of the commitment)? More concretely, does it seek to gain the benefit of the contract (the store lease) while using the discretion granted by the contract to evade the cost of entering into the contract (paying the percentage of sales as rent). In this way, the doctrine of good faith performance is not a restriction on the freedom of contract, but is instead a means of enforcing the actual terms of the contract where discretion is allowed. But is this theory applicable to the President of the United States?
At this point, the text of the Take Care Clause struck me: the President “shall take Care that the Laws be faithfully executed. . . .” There it was right in the text of the Constitution: the president’s duty of good faith performance. True, I do not view the Constitution as a literal contract. But like a contract, the Constitution is a writing that must be interpreted and applied. And the President is supposed to be the agent of the people. He consents to take an oath to obey “this Constitution,” the written one. Under the terms of this Constitution, the President owes a duty or “shall” take care that the laws be “faithfully” executed. Although this duty inevitably requires the exercise of discretion, like any other agent, the President owes his principal — the People — a duty of good faith in the exercise of this discretion.
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.
RELATED: Josh Blackman describes the amicus brief he joined (with the Cato Institute and other law professors) supporting Texas' challenge to the deferred immigration enforcement.
Posted at 6:28 AM