Take Care Clause
[The President] shall take Care that the Laws be faithfully executed....
The Take Care Clause imposes a duty that qualifies the Article II, Section 1, Clause 1 grant of executive power. By virtue of his executive power, the president may execute federal laws and control officers who execute those laws. The Take Care Clause modifies the grant of executive power, requiring the president to “take Care that the Laws be faithfully executed.”
Though the clause’s antecedents can be traced as far back as the late seventeenth century, its more immediate predecessors were found in the 1776 Pennsylvania constitution and in the 1777 New York constitution. Both not only granted their executives the “executive power,” but also required them to execute the laws faithfully. These state executives understood that they had a power to execute the laws and a duty to ensure faithful execution.
The ratifying debates reflect these understandings. Dozens spoke of the president’s power to execute the law. A few confused the power and the duty, as when Alexander Hamilton, in The Federalist No. 77, spoke of the unobjectionable “power” of “faithfully executing the laws.” Once in office George Washington directed federal and state officers in their execution of federal law. In the midst of the Whiskey Rebellion, Washington observed, “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty.
The Take Care Clause means that the president may neither breach federal law himself nor order his subordinates to do so, for defiance cannot be considered faithful execution. The Constitution also incorporates the 1689 English Bill of Rights’ bars on dispensing with or suspending the laws. Hence the president can neither authorize private violations of the law (issue individualized dispensations) nor nullify statutes (wholly suspend their operation).
Despite these constraints, the president typically enjoys a great deal of enforcement discretion. To begin with, he may pardon (see Article II, Section 2, Clause 1) offenses even before trial or conviction, meaning that he need not investigate and prosecute every offender. Moreover, in the modern era, complete enforcement of every federal law is practically impossible. Resource constraints coupled with innumerable violations preclude such enforcement. Given the inevitable tradeoffs, the president may allocate scarce enforcement resources after weighing the costs and benefits of investigation, apprehension, and prosecution.
Those opposed to the claims that the president may execute federal law and control the federal law execution of others offer alternative constructions of the Take Care Clause. In one view, the clause does not assume that the president may control law execution, but merely requires that the president oversee those statutorily charged with executing law. In other words, the president is limited to the narrow power of ensuring faithful law execution by others. A more radical reading suggests that the president must obey even those statutes that forbid him from overseeing law execution. Thus, if a tax statute bars presidential oversight with respect to its execution, the president must heed that statutory constraint on presidential power.
These readings run afoul of historical evidence. The grant of executive power was widely understood at the Founding as encompassing authority to execute the laws and control the execution of others (see essay on Article II, Section 1, Clause 1). Given this sense of the Executive Vesting Clause, the Take Care Clause should not be read to limit the president to a mere overseer of law execution. Indeed, early discussions emphasized the president’s sweeping power over law execution; they did not suggest that the president could do no more than ensure faithful execution by others. Furthermore, there is no evidence supporting the notion that Congress can use the faithful execution duty as a means by which it may strip away every presidential prerogative, even the executive’s law execution function. That reading of the Take Care Clause would undermine the Constitution’s separation of powers and make the Executive Vesting Clause largely irrelevant. Again, the Take Care Clause is best read as constraining the otherwise broad law execution power that flows from the executive power.
The Take Care Clause has surfaced in Supreme Court opinions in myriad ways. Sometime case law confirms uncontroversial constraints. For instance, the president may not prevent an executive officer from performing a ministerial duty that Congress has lawfully imposed upon him. Kendall v. United States ex rel. Stokes (1838). Nor may the president take an action unauthorized either by the Constitution or by a lawful statute, for then he would not be faithfully executing the laws, so much as making them. Youngstown Sheet Tube Co. v. Sawyer (1952).
Other times, the clause has played a more interesting role, authorizing presidential direction and control of executives. In 1831, the Supreme Court observed that in faithfully executing the law, “[the president] is bound to avail himself of every appropriate means not forbidden by law.” United States v. Tingey. Based on this understanding, the Court concluded that the president could demand bonds from federal officers to ensure their faithful handling of federal funds.
Justices also have cited the clause as a reason for enforcing Article III’s case or controversy requirement. These opinions note that unlike the executive, the judiciary lacks a roving commission to ensure faithful execution of the laws. Rather, the judiciary may vindicate the laws only when a proper case or controversy exists. If a court adjudicates cases where plaintiffs lack standing, it improperly assumes the president’s Take Care duty. Most recently, in Medellin v. Texas (2008) the Court continued the tradition, going back to Hamilton, of reading the clause as a grant of power, saying that it was the “authority [that] allows the President to execute the laws, not make them.”
The clause has featured prominently in arguments about whether the president may impound (refuse to expend) appropriated funds. The practice traces back to President Thomas Jefferson’s refusal to construct gunboats, saying that they were not immediately needed and that he was awaiting a better design. Beginning with President Franklin D. Roosevelt, the executive began to withhold spending for some objects altogether. President Richard M. Nixon expanded that practice, refusing to spend for budgetary and fiscal reasons. Sometimes the executive has argued that this impoundment power flows from the Executive Vesting Clause or the Take Care Clause or both. Other times, the executive has claimed that the appropriation statutes themselves granted discretion to impound sums appropriated. Impoundment opponents often have cited the Take Care Clause as a reason why impoundments are unconstitutional, at least where Congress indicates that the entire sums appropriated must be expended. In the wake of the impoundment controversies of the 1970s, when federal courts struck down President Nixon’s impoundments, see Train v. City of New York (1975), Congress enacted a restrictive impoundment framework. To date, no successor president has argued that Congress’s impoundment rules unconstitutionally limit executive power or infringe upon the Take Care Clause.
The clause is at the epicenter of several ongoing disputes involving law execution. First, there have long been controversies about statutory restrictions on the removal of officers. From the New Deal era on, the Supreme Court has sanctioned the creation of independent agencies, which operate as a fourth branch of government. Among other things, these independent agencies execute various federal laws (communications, banking, securities) by investigating and prosecuting alleged lawbreakers. “For cause” restrictions on removal (statutory restrictions requiring a reason for removal) and a tradition of independence make it difficult, if not impossible, for the president to ensure that these agencies faithfully execute the law. In a recent case, the Supreme Court recognized as much, when it invalidated a statutory removal restriction. Free Enterprise Fund v. Public Company Accounting Oversight Board (2011). The Court said the Constitution forbade multi-layered schemes where Congress makes one set of officers (in this case the commissioners of the Securities and Exchange Commission) removable for cause by the president and makes another set of officers (members of the Public Company Accounting Oversight Board) removable for cause only by the first set of officers (the Securities and Exchange Commission). Striking down the second layer of “for cause” restrictions (but leaving the first layer intact), the Court declared that “[t]he President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the [PCAOB] officers who execute them.” But the same could be said of a single layer of “for cause” restrictions. The “for cause” restrictions protecting the SEC commissioners lessen their responsibility to the chief executive, thereby making it more difficult for him to ensure that they are faithfully executing the law. Perhaps the Court will revisit cases, such as Humphrey’s Executor v. United States (1935), that have upheld single-layer “for cause” restrictions.
Second, there are continuing disagreements about whether the president may, or perhaps must, abide by, defend, and enforce laws that he believes are unconstitutional. In “signing statements” (issued by the president when he signs a bill into law), presidents sometimes declare that they regard parts of a new law to be unconstitutional and that they will not honor or implement those provisions. Sometimes this stance reflects a narrow claim that when a provision of law trenches upon presidential power (e.g., the commander in chief authority or the pardon power), the president has a power to ignore such provisions. In other instances, the president claims a broad power to ignore any provision of law that he regards as unconstitutional, even if it relates to individual rights or federalism. Some scholars have argued that the Take Care Clause bars executive review. On this view, presentment is the only time where the president may act on constitutional objections. Once a bill becomes law, the president must enforce it. Other scholars disagree. They believe that unconstitutional laws are void ab initio and thus not laws at all within the meaning of the Take Care Clause. Moreover, consistent with his oath to preserve the Constitution, the president can take no action that would violate the Constitution, including enforcing laws that he believes are unconstitutional. Finally, the Constitution has been read from the beginning to authorize such review, with James Wilson noting that both the executive and the judiciary could refuse to enforce unconstitutional laws. Thomas Jefferson was the first president to refuse to enforce a law he believed was unconstitutional. He terminated ongoing Sedition Act prosecutions and pardoned those previously convicted. He argued that the Constitution barred the act’s enforcement and that he could no more enforce it than he could a law requiring the worship of a golden calf.
Lastly, there are recurring clashes about whether the president may decline to enforce statutes on policy grounds. As noted earlier, the Constitution never conveys any power to decline to enforce (to suspend) a statute. If the president has power to decline to enforce a statute, it arises from the express or implicit terms of that statute and its interaction with the vast realm of federal law. Recognizing that it would be impolitic to assert a constitutional power to decline to enforce statutes, modern presidents carefully avoid embracing such a power. Instead, they argue that certain laws implicitly convey enforcement discretion or that new statutory provisions tacitly permit the executive to grant transition relief with respect to their implementation. Critics of these presidential measures deny that the statutes in question grant the discretion that the executive asserts and insist that in declining to enforce a law the president has violated his Faithful Execution duties.
Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541 (1994)
Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992)
Gary Lawson & Christopher D. Moore. The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267 (1996)
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994)
CHRISTOPHER N. MAY, PRESIDENTIAL DEFIANCE OF “UNCONSTITUTIONAL” LAWS: REVIVING THE ROYAL PREROGATIVE (1998)
Saikrishna B. Prakash, The Essential Meaning of Execu-tive Power, 2003 U. ILL. L. REV. 701 (2003)
Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613 (2008)
Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965 (1997)
United States v. Tingey, 30 U.S. (5 Pet.) 115 (1831)
Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838)
United States ex rel. Goodrich v. Guthrie, 58 U.S. (17 How.) 284 (1854)
Mississippi v. Johnson, 71 U.S. (4Wall.)475 (1866)
Cunningham v. Neagle, 135 U.S. 1 (1890)
Myers v. United States, 272 U.S. 52 (1926)
Humphrey’s Executor v. United States, 295 U.S. 602
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Train v. City of New York, 420 U.S. 35 (1975)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Medellin v. Texas, 552 U.S. 491 (2008)
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2011)