Obama's executive amnesty is constitutional

Some argue there is a crucial distinction between case-by-case decisions not to prosecute (as with marijuana possession on campus) and a generalized, systematic policy of not doing so in a category of cases. But that distinction makes little sense. After, all, case-by-case decisions are often driven by policy considerations, such as the harm caused by the violation in question and whether federal resources might be better employed elsewhere. Unless case-by-case exemptions are to be completely arbitrary and capricious, they must be guided by at least some general principles, such as the considerations relating to the risks posed by letting the offender go and the moral blameworthiness of his conduct. Once the legitimacy of using such principles to guide prosecutorial discretion is conceded—as it must be—then there is nothing wrong with announcing them in advance and applying them as general rules. If lower-level federal prosecutors and immigration officials can apply such principles, then their superiors—including the president—can issue orders requiring them to do so in a consistent and systematic way. Such systematization helps ensure that like cases are treated alike, as opposed to permitting differential treatment at the whim of individual low-level decision-makers.  

At the very least, there is no meaningful difference between a de facto policy of exempting a large category of violations from prosecution (as with marijuana possession on campus) and a more explicit, formal decision to the same effect. If anything, the latter is preferable because it is more transparent and more readily subject to public scrutiny and debate. Because the exemption of campus marijuana users from prosecution has arisen gradually, without any clear formal decision, it has not generated nearly as much public scrutiny and debate as Obama’s order—despite the fact that it lets far more lawbreakers get away with their offenses.

Some critics of formal announcements claim they are worse than unannounced policies because the former encourage future lawbreaking by putting potential offenders on notice that they will not be prosecuted. But college students interested in experimenting with illegal drugs are well aware that there is virtually no chance that they will prosecuted under federal law for possessing marijuana on campus. If anyone is being kept in the dark here, it is the general public beyond the campus walls.