YEAH, I’M NOT SEEING A LOT OF THAT: Randy Barnett: The President’s Duty of Good Faith Performance.

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. . . . 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.

Read the whole thing.