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

25 Pages Posted: 7 Apr 2016 Last revised: 30 Oct 2018

See all articles by Sam Kamin

Sam Kamin

University of Denver Sturm College of Law

Date Written: April 4, 2016

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.

Keywords: Prosecutorial Discretion, Marijuana, Immigration, Take Care Clause

Suggested Citation

Kamin, Sam, Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle (April 4, 2016). 14 Ohio State Journal of Criminal Law, 183 (2016); U Denver Legal Studies Research Paper No. 16-19. Available at SSRN: https://ssrn.com/abstract=2758836

Sam Kamin (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6125 (Phone)
303-871-6711 (Fax)

HOME PAGE: http://law.du.edu/index.php/profile/sam-kamin

Register to save articles to
your library

Register

Paper statistics

Downloads
163
rank
178,222
Abstract Views
792
PlumX Metrics