Our new brief on the President's duty of good faith performance

I have previously posted here about how contract law theory can help us understand the President's duty to take care that laws be "faithfully" executed. Now I have participated in this brief by the Cato Institute for myself and GMU Professor Jeremy Rabkin in U.S. v. Texas that makes this same point (among others). The key contribution of this approach is that finding that statute allows the President some discretion is, by itself, not enough to determine whether his use of that discretion is "faithful." The doctrine of good faith performance of contracts operates when contracts allocate discretion to a party, and ascertaining good faith performance is a traditionally appropriate judicial function.

Here is an excerpt from the brief (my emphasis in bold):

The word "faithfully" is best understood to impose a standard of good faith, a legal principle that stretches back to antiquity. The concept of good faith was well-known in the 17th- and 18th-century English common law of contracts.

Professor Burton's canonical work on the common-law duty of good-faith contractual performance helps to explicate the design of the Take Care Clause. Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369 (1980). Good faith performance "occurs when a party's discretion is exercised for any purpose within the reasonable contemplation of the parties at the time of formation-to capture opportunities that were preserved upon entering the contract." Id. at 373.

Acting in good faith does not-indeed cannot- require 100-percent compliance with all legal duties. The issue for courts to consider is not whether a party does or does not have discretion. The question of good-faith performance arises precisely when a party has discretion. The "same act will be a breach of the contract if undertaken for an illegitimate (or bad faith) reason." Id. The focus, then, is placed on the promisor's motivation for exercising the discretion, and whether the compact permits it. In order to determine good faith, an inquiry must be made into the motivations of the promisor's actions.

When a contract allows one party some discretion in its performance, it is bad faith for that party to use that discretion to get out of the commitment to which he originally consented. Id. Likewise, a party to a contract who deliberately refuses to make efforts to discharge his contractual duties-where he is able to do so-is not acting in good faith.

To put this in constitutional terms, courts should ask whether the president is acting within the realm of prosecutorial discretion that Congress contemplated when it enacted the statute. If the answer is yes, the deviation from the law is in good faith, and is thus permissible. However, if the departure from the law is "used to recapture opportunities forgone upon contracting"-to accomplish ends rejected by Congress-then the action is not in good faith. When the president bypasses a statute by relying on a claim to authority Congress withheld from him, this is evidence that the president is violating his constitutional duty.

Under this theory, what "matters is the purpose or motive for the exercise of discretion." Id. Good faith exercises of discretion-such as efforts to prioritize the limited resources available for enforcement-are within the executive's proper authority. But the same action is unlawful when it is intended to evade the law-making authority of Congress, based on a disagreement with the law being enforced.

An official's deliberate refusal to abide by the law-even if he professes an implausible fidelity to it-runs afoul of the Take Care Clause. It is not that any deliberate deviation is presumptively forbidden. Instead, the deviation must be done in bad faith, as an intentional means to bypass the legislature. Motivation is therefore the factor that distinguishes genuine prosecutorial discretion from a pretextual usurpation. The determination of whether a party has acted in good or bad faith is the sort of ordinary judicial function whereby courts employ a totality-of-the circumstances analysis.

Professor Josh Blackman, who wrote the first draft, and Cato's Ilya Shapiro did excellent work on this brief, with input from Goldwater's Tim Sandefur.