The Four Horsemen of the Apocalypse is a well-known image. The Book of Revelation identifies them as Famine, Pestilence, Destruction, and Death. Used in Revelation as a harbinger of the end of days, the imagery has been reused in other contexts as a metaphor to herald the end of a political state, such as the Roman Empire. The same metaphor can be used to signify the end of the Barack Obama presidency.
The Framers anticipated that legislation would represent the formal implementation of policy. That was why they spent most of the Convention of 1787 debating issues such as how, given the existence of large states and small ones, to select Members of Congress, what legislative powers the new Congress should have, and how Congress could turn a policy into a “Law.”
At the outset of his time in office, President Obama worked with Congress to enact as law policies that he believed were necessary to benefit the nation. Two examples are his economic stimulus package and Obamacare. Another one was a reform of the federal sentencing laws for the distribution of crack cocaine. Believing that the disparity between the sentences imposed on offenders who dealt in crack versus powdered cocaine was unjust, he persuaded Congress to enact the Fair Sentencing Act of 2010, which greatly reduced that disparity on a prospective basis.
When his party lost control of the House of Representatives and Senate, however, President Obama shifted gears. Since then, he has often used executive orders or administrative decrees (issued by different departments) rather than legislation to create law. In fact, sometimes he has issued such decrees in the teeth of the very laws that he helped enact early in his first term, such as Obamacare.
One of the horsemen he has ridden is the pardon power. That power is a descendant of the crown’s inherent power to extend mercy to an offender, now expressly granted to the President by the Pardon Clause of Article II of the Constitution. The Pardon Clause enables the President to reduce the punishment imposed by a court or to erase a judgment of conviction entirely. When Congress refused to amend the Fair Sentencing Act of 2010 so that it would apply retroactively, President Obama created the Clemency Project 2014 so that he could commute the sentences of deserving prisoners who could not take advantage of that law. He recently exercised that authority and likely will continue to do so throughout his remaining time in office.
President Obama also has sought to invoke executive authority with regard to immigration. More than 11 million aliens are in the United States illegally, either because they entered without a passport or visa or because they overstayed their authorized time in this country. A bill colloquially known as the DREAM Act would enable aliens who are here illegally to remain in the United States if they could satisfy several criteria: for example, that they entered the United States at age 15 (or younger) and have lived here for five (or more) years, are of “good moral character,” and have either graduated from high school or earned a general educational development (GED) certification. Unable to persuade Congress to pass the DREAM Act, the President decided to implement the act’s provisions by means of a Department of Homeland Security (DHS) administrative memorandum expressly modeled on the bill’s provisions.
Lacking express statutory authority to adopt the new policy, the President has relied on an Article II power different from the Pardon Clause: the President’s authority to exercise discretion in the enforcement of the law, a power attributed to the Take Care Clause of Article II. In the government’s view, the DHS has the discretion to decide how to allocate its scarce resources to those instances in which the immigration laws and the nation’s interests are best served. The new policy fits that description, DHS argues, because it subordinates to more pressing deportation proceedings the need to institute hearings to deport aliens whose presence in the nation poses no risk to national or internal security and whose deportation would pose a serious hardship on them. The government’s argument is quite symmetrical: The Take Care Clause vests in the President the same prerogative with respect to the front end of the criminal or civil justice system as the absolute power that the Pardon Clause gives the President at the back end of the criminal process.
This is a case where the text of Article II alone cannot answer the question whether the DHS policy is lawful. Also illuminating is the English legal and political background to Article II. That history reveals a deliberate attempt to cabin the power of a chief executive to those instances that implement the authority that the Framers or Congress have vested in the President. In particular, that relevant history reveals two implicit but clear limitations on the President’s authority: The President cannot dispense with the application of the law for particular people, and he cannot suspend the operation of a law in its entirety. Accordingly, whether the DHS policy is lawful can be answered only by defining the channel in which a President may act.
The DHS Policy and the Texas Lawsuit
Before the Supreme Court this term is the case of United States v. Texas. The case involves a challenge by Texas and other states to the legality of the DHS policy. Texas and 25 other states brought this litigation, arguing that the policy is invalid under the Administrative Procedure Act (APA) because the DHS did not submit it for notice-and-comment review before it went into effect. The district court issued a preliminary injunction preventing the DHS from implementing its policy, and the U.S. Court of Appeals for the Fifth Circuit, by a divided vote, affirmed.
The United States petitioned the Supreme Court to review the case. The government argued that the lower courts erred for several reasons: Texas lacked Article III standing to bring this lawsuit; Texas does not have a justiciable claim under the APA; the DHS guidance memorandum is not subject to the APA notice-and-comment requirement; and, in any event, the policy is not arbitrary, capricious, or otherwise unlawful. The Supreme Court granted the government’s petition in January but added an interesting wrinkle to the case: The Court ordered the parties to brief and address the additional question whether the DHS memorandum violates the Take Care Clause. The result of that order was to increase the importance of an already significant case.
The Take Care Clause has not been the subject of many Supreme Court decisions. Ordinarily, the clause arises in only one of two fairly narrow contexts: Someone who would benefit from the government’s enforcement of a law challenges the government’s refusal to initiate a civil or criminal action of some kind, or someone who is the target of a government lawsuit or indictment claims that the government has acted with an invidious motive of one type or another. Yet even in those contexts, the Court has not said a great deal about the content of the clause. Typically, the clause makes no more than a cameo appearance during a discussion of the Court’s precedents, making the point either that the plaintiff cannot bring a lawsuit to force the government to sue or charge a third party or that the President and his lieutenants enjoy considerable charging discretion, which was not abused in the case at hand. What is more, most of the discussion in those cases focuses on the Court’s case law rather than on the text or history of the clause.
Of course, the text of the Take Care Clause is sparse, as is its history, so perhaps we should not be surprised at the Court’s disinterest in learning its metes and bounds. That disinterest, however, may have disappeared. By directing the parties in United States v. Texas to address the legality of the DHS memorandum under the Take Care Clause, the Court appears to be interested in learning about its content, which will spur the parties and amici to plumb whatever depths exist to give that clause meaning.
The Court has often displayed interest in learning the historical background to different provisions of the Constitution. The Court has done so in cases involving civil liberties found in the text of the Constitution or in the Bill of Rights and in cases raising issues concerning the structure of American government, which includes both separation of powers and federalism concerns. In the latter category, an issue can often be resolved only by considering the interplay of several provisions against the background problem(s) that the Framers sought to remedy or forestall.
The Supreme Court’s frequent reliance on history to illuminate the meaning of the Constitution’s text should not come as a great surprise to anyone. The theory of judicial review known as Originalism affords great weight to how the Framers’ generation would have understood a term found in the Constitution. Of course, not everyone agrees with that approach to constitutional interpretation. Some lawyers, scholars, and even Supreme Court justices follow a different path. At times, the full Court has also abandoned that approach by reading into the Constitution rights nowhere found in its text or background. The Court’s rationale has been that, to remain a vibrant document, the Constitution must adapt to new circumstances.
However one resolves that debate, it would be a strange rule of jurisprudence that would give no weight to the history of the problem(s) that any legal text sought to resolve by the written word. That approach would deprive judges of a useful, sometimes even dispositive, aid to the meaning of an ambiguous term. In an extreme case, it could unmoor the text from its history and allow a judge to craft a jurisprudence that is more a work of fiction than a constitutional biography.
With that point in mind, the question is whether the history says anything useful about the issues in United States v. Texas. The answer, it turns out, is yes.
Magna Carta: The Law Becomes Sovereign
Early English law began in the seventh century as unwritten local customs followed by each separate community. William the Conqueror left those indigenous customs in place, but he and his successors sought to solidify the crown’s control of the island by creating a centralized judicial system whose judgments would have the crown’s backing. Over time, the decisions of the king’s judges became the common law of England, governing all communities in the realm.
What was particularly noteworthy about the common law was that one of the communities it governed was the one formed by the king’s court. One of the unique features of English law was its position at the top of the hierarchy of sovereigns. By the 13th century, a fundamental principle of English legal and political theory was that the common law was sovereign, not the king’s decree. The law was the body of customs that, over time, English society had accepted as its governing rules.
One of those principles, known as the “rule of law,” was that even the king was subject to the law. The king’s decrees may have been the law elsewhere, but not in England. In fact, it was the law that gave the king the authority to govern, as well as grant the people certain inalienable rights that even the crown could not take away.
In 1215, the rule of law took on a concrete form in Magna Carta. Unlike the Declaration of Independence or the Declaration of the Rights of Man, which sought to justify different revolutions by pleading that the government had violated the natural rights of man, Magna Carta was a peace treaty designed to end a civil war. Tired of King John’s continued arbitrary rule, the English barons renounced their oath of loyalty to the crown, rebelled against John, and reasserted the sovereign nature of settled English customs. Fearing a loss in battle, King John acceded to the barons’ demands “in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of [his] reign.”
Magna Carta’s most famous provision is Article 39, which made explicit the principle that the law, not the crown, was sovereign by providing that “[n]o free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” The guarantee that the crown could rule only in accordance with “the law of the land” meant, according to Coke, that “no man [could] be taken or imprisoned, but per legem terrae, that is, by the common law, statute law, or custome of England.”
By making clear that the law was sovereign, Article 39 foreshadowed in England the effect that our Constitution would have in America. As William Pitt later observed, that article became “the Bible of the English Constitution.” It provided the foundation for other well-known acts of Parliament granting various other civil liberties to the English people since 1215. But Magna Carta is primus inter pares—first among equals.
The Glorious Revolution: Parliament Replaces the Law as Sovereign
As far as the issue of sovereignty was concerned, the English crown did not go gentle into that good night. Before the ink was dry on the Great Charter, King John repudiated it and reinitiated his war with the barons. Only his death the following year brought the war to a close. John’s minor son, King Henry III, became king, and to quell the rebellion, he reissued Magna Carta, with Article 39 intact, which again officially made the law sovereign.
Nonetheless, the battle between the crown and Parliament over which was sovereign continued for centuries, just without the open warfare of the early years of the 13th century. Ostensibly, sovereignty rested in both the King and Parliament (termed “the King in Parliament”), but each one jockeyed for position. When Charles I became king in 1625, the separation of powers contest began in earnest. It reached its peak during the period from 1642 to 1689—the era of the Civil War, the Interregnum, the Restoration, and the Glorious Revolution—with Parliament ultimately coming out on top.
Two factors together played an important role in the dénouement of that conflict. The first was the crown’s never-ending claim of sovereignty. Notwithstanding Article 39, the English kings claimed that they were sovereign, not the law, and so could lawfully “dispense” with the laws (to exempt particular individuals from complying with them) or “suspend” the operation of a law entirely (to put it into the penalty box for some period). That authority resembled the one that popes had exercised to excuse compliance with canon law.
The parallel was troubling because of the second factor: religious differences between the House of Stuart and members of Parliament (as well as the vast majority of the population). England had broken from Rome in the 16th century under Henry VIII, who appointed himself head of the Church of England. Distrust of the Church of Rome and Roman Catholics led to discrimination against them as official policy. Examples of that policy were the Test Acts of 1673 and 1678, which imposed (among other things) a religious test to hold public office. King James II, however, was Catholic. Following the adoption of the Test Acts, he tried to exercise a dispensation power to exempt Catholics from the requirements of those acts so that he could appoint them to positions in the civilian government and the military.
James II’s actions created the fear that the army could come under the control of Catholics and be used to suppress England’s liberties. Parliament protested. The contest continued until late 1689, when James II fled England in order to avoid the fate that had befallen his father, Charles I, who lost not just his throne, but also his head.
The result was twofold. The Glorious Revolution established that Parliament had become legally and politically superior to the crown. Even the new king and queen accepted that political reality, to the point that in their coronation oaths, William and Mary agreed to govern according to the laws of Parliament. Given the events preceding it, that concession alone royally acknowledged Parliament’s superior authority.
But that was not all. The Glorious Revolution also established parliamentary sovereignty over the common law, the long-accepted English customs that effectively had given rise to an unwritten constitution. That law was no longer sovereign; Parliament was, because it could change the law. It could repeal even historic laws like Magna Carta (although that was and is most unlikely). Thomas Hobbes had theorized that there was but one sovereign in every society. After the Glorious Revolution, Parliament held that title. To emphasize that point, the Bill of Rights of 1689 expressly denied the crown any power to suspend or dispense with the law absent Parliament’s permission. Parliament’s victory was now complete.
The American Constitution: The Law Returns as Sovereign
Like their English predecessors, the Colonists cherished the rule of law because it protected them against arbitrary government rule. As New York University Law Professor William Nelson has noted, “One of the most intense concerns of Americans in the prerevolutionary period was to render individuals secure in their lives, liberties, and properties from abuses of governmental power.”
In one regard, the Colonists’ understanding of “the rule of law” sharply diverged from the English view. By the time of the American Revolution, the Colonists distrusted Parliament as much as, if not more than, they distrusted King George III. The Colonists believed that “men and especially men in power are prone to corruption” and that Parliament could be as arbitrary as the King. “The danger to liberty was what it had always been: departure from the rule of customary law” in favor of “a rule of arbitrary command.” “The difference,” as NYU Law Professor John Phillip Reid argues, “was that now a House of Parliament, not just the Crown, had to be watched.”
But the Colonists completely agreed with their countrymen that the law must restrain the executive, and the American Constitution reflects that understanding. In Article I, the Constitution grants “[a]ll legislative Powers” to Congress. In Article II, it vests in the President not a power to make, to create, or to suspend the law, but a duty to “take care that the Laws be faithfully executed.” That difference is illuminating as to the different roles Congress and the President should play.
The Due Process Clause in the Fifth Amendment implements the rule of law. The lineal descendent of Article 39 of Magna Carta, that clause, whatever else it may require, obliges the government to act lawfully. Over time, we have forgotten that core meaning of due process because the Supreme Court has been working around (and beyond) its periphery by expanding its reach to require the government to provide hearings before suspending government benefits or to forbid the government from interfering in certain private decisions, such as abortion. But the irreducible meaning of the Due Process Clause is that the executive must comply with the law. In the United States, the law is sovereign because ours is “a government of laws, and not of men.”
Does that mean the President lacks discretion to decide which cases to select for prosecution, suit, or deportation? No; he may be selective. Of course, it is not obvious that the source of that discretion is the Take Care Clause (it certainly cannot be the Pardon Clause). After all, it seems odd to treat a directive to execute the law as granting the recipient discretion to refrain from doing just that. Nevertheless, long-standing Supreme Court case law states that executive branch officials have discretion to decide whether and how to enforce the law and that this discretion is traceable to the Take Care Clause. If the clause does grant the President discretion, the reason must be that the President can “faithfully” execute the responsibilities of his office without needing to enforce every law all the time without exception.
Corporate law is illuminating in this regard. A chief executive officer can see to the faithful execution of the firm’s business without aggressively pursuing every possible opportunity. He can be choosy in the ventures that he proposes or implements. He can even donate money to charities that would otherwise go to shareholders if he believes that doing so is in the company’s best interests. His function is to define corporate policy and guide its implementation, not to carry into effect every business proposal he or his subordinates may devise.
The President occupies a parallel position in the federal system. He sits atop the executive branch. His responsibilities are enormous and only grow larger with each Congress. It would be impossible for him to personally manage the affairs of any one of his departments. For that reason, the Constitution recognizes that he will appoint lieutenants to carry out his directives, just as a company chief executive officer appoints subordinate corporate officers. The President therefore can “faithfully” execute the law as long as he performs the functions of his office to the best of his abilities.
That understanding of the President’s constitutional responsibilities also accords with the average, everyday expectations of the electorate. The nation elects a President and hopes that he will exercise judgment in the best interests of the nation. He need not sue everyone who commits a tort, charge every person who commits a crime, or deport every illegal alien. The President can fulfill the responsibilities of his office (including staying within his budget) by establishing priorities and directing his lieutenants to carry them out.
If there were any doubt about that matter, it would be erased by the fact that Congress does not grant the President unlimited funds to enforce the law. Consider just the criminal law. The first federal crime act created approximately 30 offenses; today, there are thousands of federal crimes, more than the government could ever enforce. Yet Congress limits the amount that the President can spend on immigration enforcement to whatever sum it appropriates for the Department of Justice. The Anti-Deficiency Act, moreover, keeps the President from running up a debt by prohibiting him from spending money that has not been appropriated. Thus, even if the Take Care Clause did not empower the President to exercise discretion as to how he will see to the enforcement of the law, the federal appropriations laws force the President to set priorities within the limitations that Congress has defined.
The history discussed above is illuminating in this regard. Parliament clipped the crown’s wings by legislating that no king or queen could dispense with or suspend the law absent Parliament’s authorization. The Framers did not wrest that power from Congress and give it to the President. Instead, they imposed on the President a duty to see to the faithful execution of the law. Whatever the reach of the President’s discretionary authority to enforce the law, he cannot go so far as to dispense with or suspend its application.
To be sure, the Constitution does not expressly deny the President a dispensation or suspension power; the text is silent on those subjects. Yet they are implicit in Article II. Why? The Constitution delegates only limited and identified powers to the federal government, leaving the remainder to the states, and of those limited federal powers, Article II delegates only certain specified ones to the President. Neither a dispensation nor a suspension power is among them. That omission is important, given the history of the contest between Parliament and the Stuart kings over sovereignty. That background reveals that a President may exercise a dispensation or suspension authority only insofar as Congress empowers him to do so.
Put yourself in the Framers’ shoes. They did not give George Washington the power claimed by James II to dispense with or suspend the operation of the laws, even though he had just led America to a victory over the English and was likely the most revered leader in the nation. The nation also certainly has not given those powers to any President since then. The conclusion is inescapable: Neither dispensation nor suspension is a part of the authority given the President by the Take Care Clause, regardless of how broadly that clause is construed.
The Four Horsemen and the Law
How does all that fit together? This way.
The Four Horsemen metaphorically signified the imminent fall of the Roman Empire. The end of a President’s second full term of office represents a similar demise. By that point, particularly when we reach the eighth and last year of a President’s tenure, as we have now, the President is at the ebb of his power. Congress does not fear him (if it ever did) because he will soon be gone. His own party focuses on the people competing to be the next candidate and next President. The opposing party not only runs against him, but also is ordinarily unwilling to engage in the type of political compromises necessary to pass most types of important legislation. The President never becomes irrelevant, either to politics or to the process of governance, but he no longer can rely on the first branch of government to cooperate on much of anything other than preventing imminent national catastrophes and keeping the government running until his successor takes office.
The result is that Presidents will often take unilaterally whatever actions they can arguably perform. Presidents may sometimes focus on foreign policy, an area where the law gives him the greatest latitude. If a President remains interested in domestic policy, he may rely on executive orders or agency policy statements to accomplish any results he wants to see become law, at least until his term ends.
It also is not uncommon to see Presidents ride two of the four available horses—Discretion and Pardon—in the twilight hours of their time in the Oval Office. The Justice Department filed an antitrust lawsuit against IBM in the waning hours of Lyndon Johnson’s Administration, a case that became the legal version of the Vietnam War: long, costly, and ultimately resulting in a winless withdrawal. President Bill Clinton “used his clemency power promiscuously in his last 24 hours in office, granting pardons and commutations the way that a drunken sailor on shore leave spends money.” The other two horsemen—Dispensation and Suspension—may not be far away, since they are just more aggressive versions of Discretion.
To be sure, history reveals that the President may be able to exercise his clemency power virtually in a manner unchecked by law. The United States, however, does not rely on the President’s pardon power to defend the DHS policy. Nor could it do so, because that defense would require the President each new day to “pardon” someone for his unlawful presence the day before, an action that would be tantamount to dispensing with or suspending the operation of the law for one or more people.
History demonstrates that President Obama has no such power. The Stuart kings claimed that power, but the Glorious Revolution proved that only Parliament could exercise it. The attempt to exercise it cost Charles I his head and James II his throne. Aware of those outcomes, the Framers did not include any such authority under the umbrella of the Take Care Clause.
The federal government did not ask the Supreme Court to address the Take Care Clause. The Court came up with that issue by itself. As a consequence, the Court may not be aware of the interplay between that horseman—Discretion—and the three others—Dispensation, Suspension, and Pardon. The English history detailing the battle between the crown and Parliament over sovereignty reveals how far the President may and may not exercise Discretion.
That lesson is an important one when considering the power granted to the President by the Take Care Clause. Its text imposes a duty on the President to enforce the law and grants him no power to dispense with or suspend it. Given the clause’s background, neither a dispensation nor a suspension authority can be deemed an inherent part of the executive power that Article II vests in the President. Any such claim would be inconsistent with the “rule of law,” a principle represented by the Constitution itself, a charter that the Framers intended to be the sovereign. To enforce its sovereignty, they created not a monarch, but a President: an executive, not a king, and certainly not a king with greater power than George III could have exercised.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.