What are the consequences of delinquency?
By Randy Barnett, The Washington Post / Volokh Conspiracy
…With yesterday’s cert grant in U.S. v. Texas on the question, “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3,” it seemed timely to reprint it in its entirety. I suggest that the contractual doctrine of “good faith performance,” properly understood, provides a practical way for courts to assess whether the President has violated this constitutional duty, as they routinely do in contracts cases.
I admit initially to being ambivalent about the constitutionality of President Obama’s executive actions on immigration. Just ask my students. As I explained in class, on the one hand it did seem to flout the President’s duty to “take care that the laws be faithfully executed.” On the other hand, as a former prosecutor, I am well aware of the inevitability of prosecutorial discretion. And, when administering the vast executive branch, how else is a unitary president to exercise his power than by issuing a policy that can be consistently followed by the principal and inferior officers who ultimately answer to him?
Read the whole thing!