A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II

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A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II

April 15, 2016 21 min read Download Report
Paul Larkin
Rumpel Senior Legal Research Fellow
Paul is a Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

The Four Horsemen of the Apocalypse is a well-known image. The Book of Revelation identifies them as Famine, Pestilence, Destruction, and Death.[1] 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,[2] what legislative powers the new Congress should have,[3] and how Congress could turn a policy into a “Law.”[4]

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,[5] he persuaded Congress to enact the Fair Sentencing Act of 2010,[6] which greatly reduced that disparity on a prospective basis.[7]

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.[8]

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.[9] The Pardon Clause enables the President to reduce the punishment imposed by a court or to erase a judgment of conviction entirely.[10] 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.[11] He recently exercised that authority[12] 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.[13] A bill colloquially known as the DREAM Act[14] 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.[15] 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.[16]

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.[17] 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.[18] 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.[19] 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)[20] 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,[21] and the U.S. Court of Appeals for the Fifth Circuit, by a divided vote, affirmed.[22]

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.[23] 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,[24] 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.[25] 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.[26] 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[27] or in the Bill of Rights[28] and in cases raising issues concerning the structure of American government, which includes both separation of powers and federalism concerns.[29] 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.[30] Of course, not everyone agrees with that approach to constitutional interpretation. Some lawyers, scholars, and even Supreme Court justices follow a different path.[31] At times, the full Court has also abandoned that approach by reading into the Constitution rights nowhere found in its text or background.[32] The Court’s rationale has been that, to remain a vibrant document, the Constitution must adapt to new circumstances.[33]

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.[34] 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.[35]

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.[36] 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.[37]

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.[38] 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.[39]

In 1215, the rule of law took on a concrete form in Magna Carta.[40] 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.”[41]

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.”[42] 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.”[43]

By making clear that the law was sovereign, Article 39 foreshadowed in England the effect that our Constitution would have in America.[44] As William Pitt later observed, that article became “the Bible of the English Constitution.”[45] It provided the foundation for other well-known acts of Parliament granting various other civil liberties to the English people since 1215.[46] 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.[47] 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.[48]

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.[49]

Two factors together played an important role in the dénouement of that conflict.[50] 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.[51]

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.[52] 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.[53] Given the events preceding it, that concession alone royally acknowledged Parliament’s superior authority.[54]

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).[55] 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.[56] Parliament’s victory was now complete.

The American Constitution: The Law Returns as Sovereign

Like their English predecessors,[57] the Colonists cherished the rule of law because it protected them against arbitrary government rule.[58] 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.”[59]

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.[60] “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.”[61] “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.”[62]

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.[63] 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.”[64] 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.[65] 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[66] or to forbid the government from interfering in certain private decisions, such as abortion.[67] But the irreducible meaning of the Due Process Clause is that the executive must comply with the law.[68] In the United States, the law is sovereign because ours is “a government of laws, and not of men.”[69]

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[70] and that this discretion is traceable to the Take Care Clause.[71] 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.[72] 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;[73] today, there are thousands of federal crimes, more than the government could ever enforce.[74] 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,[75] 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.[76]

The history discussed above is illuminating in this regard.[77] 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.[78] 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.[79] 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.”[80] 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.[81] 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.[82] 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.

[1] Revelation 6:1–8. The Book of Rice identifies them under different names. See Grantland Rice, The Four Horsemen, N.Y. Herald Tribune, Oct. 18, 1924, http://archives.nd.edu/research/texts/rice.htm (“Outlined against a blue-gray October sky, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction and Death. These are only aliases. Their real names are Stuhldreher, Miller, Crowley and Layden. They formed the crest of the South Bend cyclone before which another fighting Army football team was swept over the precipice at the Polo Grounds yesterday afternoon as 55,000 spectators peered down on the bewildering panorama spread on the green plain below.”).

[2] See U.S. Const. art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”); id. amend. XVII (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”).

[3] See U.S. Const. art. I, § 8 (specifying the powers of Congress).

[4] See U.S. Const. art. I, § 7 (spelling out the bicameralism and presentment requirements).

[5] See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified at 21 U.S.C. § 841 (2006)) (amended 2010). That law imposed mandatory minimum sentences for the distribution of controlled substances according to their weight. The amount of crack cocaine that triggered the mandatory minimum was one hundred times less than the amount of powdered cocaine. Id. Tit. I, § 1002, 100 Stat. at 3207–20.

[6] Pub. L. No. 111-220, 124 Stat. 2372 (2010).

[7] The 2010 act reduced the ratio from 100:1 to 18:1. See Paul J. Larkin, Jr., Crack Cocaine, Congressional Inaction, and Equal Protection, 37 Harv. J.L. & Pub. Pol’y 241 (2014).

[8] See David E. Bernstein, Lawless: The Obama Administration’s Assault on the Rule of Law 81 (2015) (“The problems with Obamacare can be divided into three categories: …(3) the illegal ways the Obama Administration has delayed, ignored, and modified various Obamacare provisions to suit its political agenda.”); Executive Overreach in Domestic Affairs Part I—Health Care and Immigration, Hearing before the Task Force on Executive Overreach of the H. Comm. on the Judiciary, 114th Cong. (2016) (written statement of Elizabeth Slattery).

[9] The Pardon Clause, U.S. Const. art. II, § 2, cl. 1, provides as follows: “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

[10] See, e.g., Schick v. Reed, 419 U.S. 256, 266 (1974).

[11] See Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y (forthcoming 2016) (manuscript at 44–48).

[12] See Office of the Press Sec’y, The White House, President Obama Grants Commutations and Pardons (Mar. 30, 2016).

[13] Pet. for a Writ of Cert., in United States v. Texas, No. 15-674, at 3–4 (filed 2015) (“U.S. Cert. Pet.”); Pet. Br. 3, in id. (“Pet. Br.”).

[14] The original bill was the Development, Relief, and Education for Alien Minors Act, S. 1291, 107th Cong. (2001).

[15] U.S. Cert. Pet. 5–8; Pet. Br. 4–9.

[16] Pet. Br. 9–11. The immigration statutes and DHS policy are described at Linda Chavez, Immigration: Executive versus Congressional Action, in Liberty’s Nemesis 71, 71–78 (Dean Reuter & John Yoo eds., 2016); Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the Dream Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013).

[17] See U.S. Const. art. II, § 3 (“[The President]…shall take Care that the Laws be faithfully executed[.]”).

[18] Cf. Paul J. Larkin, Jr., The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking, 38 Harv. J.L. & Pub. Pol’y 337, 358–59 (2015) (“[A] fundamental canon of construction of legal texts is that an undefined term should receive its ordinary dictionary meaning because that is the interpretation that a reasonable person would give to it. But there are also occasions when Congress relies on someone other than Noah Webster for the meaning of statutory terms, and in those cases the question arises as to how a law should be read.”).

[19] 136 S. Ct. 906 (2016).

[20] 5 U.S.C. § 701 et seq. (2012).

[21] Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

[22] Texas v. United States, 809 F.3d 134 (5th Cir. 2015). Judges Jerry Smith and Jennifer Elrod formed the majority; Judge Carolyn King dissented.

[23] U.S. Cert. Pet. i.

[24] See, e.g., Heckler v. Chaney, 470 U.S. 821 (1985) (challenge to the Food and Drug Administration’s decision not to take action against drugs used in lethal injection procedures); Linda R. S. v. Richard D., 410 U.S. 614 (1973) (action brought to challenge the district attorney’s refusal to bring criminal prosecutions for certain types of child support cases).

[25] See, e.g., United States v. Armstrong, 517 U.S. 456 (1996) (defendant claimed that the government prosecuted him for drug trafficking based on his race); Wayte v. United States, 470 U.S. 598 (1985) (challenge to the government’s prosecution of the defendant for his failure to register for the draft, on the ground that the government indicted the petitioner due to his protest activities).

[26] See, e.g., Armstrong, 517 U.S. at 464 (“The Attorney General and United States Attorneys retain ‘“broad discretion”’ to enforce the Nation’s criminal laws. Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’ U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547.”).

[27] See, e.g., Nixon v. GSA, 433 U.S. 425, 473–74 (1977) (Bill of Attainder Clause).

[28] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 592–98 (2008) (Second Amendment); Williams v. Florida, 399 U.S. 78, 87–90 (1970) (Sixth Amendment Jury Trial Clause); Klopfer v. North Carolina, 386 U.S. 213, 223–25 (1967) (Sixth Amendment Speedy Trial Clause); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (Fifth Amendment Due Process Clause).

[29] See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) (Article II Reception Clause); Arizona v. United States, 132 S. Ct. 2492 (2012) (Article I Naturalization Clause); Printz v. United States, 521 U.S. 898 (1997) (Tenth Amendment and Article II Appointments Clause); INS v. Chadha, 462 U.S. 919, 946–47 (1983) (Article I Presentment Clause); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (Article III original jurisdiction of the Supreme Court and the practice of individual justices “riding circuit”).

[30] See, e.g., Edwin Meese III, U.S. Att’y Gen., Speech Before the American Bar Association (July 9, 1985), in Originalism: A Quarter-Century of Debate 47 (Steven G. Calabresi ed., 2007); Edwin Meese III, U.S. Att’y Gen., Speech Before the D.C. Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985), in Originalism, supra, at 71.

[31] See, e.g., Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium at Georgetown University (Oct. 12, 1985), in Originalism, supra note 30, at 55.

[32] See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (creating a constitutionally protected liberty interest in same-sex marriage); Roe v. Wade, 410 U.S. 113 (1973) (same, abortion).

[33] See, e.g., Weems v. United States, 217 U.S. 349, 373 (1910) (“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.”).

[34] See, e.g., Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1244 (1987) (“I know of no constitutional case in which the Supreme Court has held that, although the framers’ intent would require one result, another must be upheld on some other ground.”) (footnote omitted); Henry Paul Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 375 n.132 (1981) (“Reliance upon original intent occurs even in opinions where actual holdings seem wholly at variance with original intent.”). But see Fallon, supra, at 1255 n.256 (suggesting that Reynolds v. Sims, 377 U.S. 533 (1964), which adopted the “one person, one vote” rule, might be an exception but was unacknowledged as being one by the Supreme Court).

[35] For a biographical approach to the Constitution, see Akhil Reed Amar, America’s Constitution: A Biography (2010). For an approach that encourages judges to take the law into their own hands, see Louis Michael Seidman, On Constitutional Disobedience (2012).

[36] Paul J. Larkin, Jr., The Lost Due Process Doctrines, 66 Cath. U. L. Rev. (forthcoming 2016) (manuscript at 28–29).

[37] Id. (manuscript at 29–30).

[38] See Roger Twysden, Certaine Considerations upon the Government of England 15 (John Mitchell Kemble ed., 1829) (1655) (noting that the kings of England ruled in accordance with the “customes, laws, and constitutions of the kingdome” because the king was “sub Deo et Lege”); see also, e.g., Frederick W. Maitland & Francis C. Montague, A Sketch of English Legal History 79 (1915) (“[E]ven in the Great Charter there is not much new law; indeed, its own theory of itself (if we may use such a phrase) is that the old law, which a lawless king has set at naught, is to be restored, defined, covenanted, and written.”).

[39] See, e.g., 1 Blackstone, Commentaries *141 (“the law is in England the supreme arbiter of every man’s life, liberty, and property”); 2 Henry de Bracton, On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king.”); John Phillip Reid, The Ancient Constitution and the Origins of Anglo–American Liberty 4–6 (2005); John Phillip Reid, The Rule of Law: The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries 4–11 (2004); Conrad Russell, The Causes of the English Civil War 138 (1990).

[40] For discussions of Magna Carta and its provenance, see, for example, David Carpenter, Magna Carta (2015); J. C. Holt, Magna Carta (2d ed. 1992); A. E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (1968); Magna Carta Commemorative Essays (Henry Elliott Malden ed., 2005) (1917); William Sharpe McKechnie, Magna Carta: A Commentary on the Great Charter of King John with an Historical Introduction (2d ed. 1914); C. H. McIlwain, Due Process of Law in Magna Carta, 14 Colum. L. Rev. 27 (1914); Max Radin, The Myth of Magna Carta, 60 Harv. L. Rev. 1060 (1947).

[41] Carpenter, supra note 40, at 69 (quoting signature section of Magna Carta).

[42] Holt, supra note 40, at 461 (reprinting Art. 39); see Gottfried Dietze, Magna Carta and Property 6 (1965) (“In tune with its emphasis upon general freedom, Magna Carta also recognizes the general rule of law. It not only proscribes specific arbitrary abuses of royal power by specific norms but leaves no doubt that these norms are mere manifestations of a general rule of law. The value of Magna Carta thus lies not only in forcing the King to respect certain rules, but also in making him obey the rule of law in general. The Charter is not only a document in which a variety of rules define a variety of governmental limitations, but also one in which the establishment of the rule of law creates limited government.”); Arthur L. Goodhart, “Law of the Land” 62 (1966) (“[T]he chief lesson of chapter 39 of Magna Carta was there need be no unlimited powers of government.”); 1 Frederick Pollock & Frederick W. Maitland, The History of English Law Before the Time of Edward I, at 173 (2d ed. 1909) (“[I]t means this, that the king is and shall be below the law.”).

[43] 2 Edward Coke, Institutes of the Laws of England 45 (1798).

[44] See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–80 (1803) (stating that the Constitution is the nation’s sovereign law and that any statute or action “repugnant to the constitution is void.”).

[45] Danny Danzinger & John Gillingham, 1215: The Year of Magna Carta 268 (2003).

[46] See, e.g., the Petition of Right of 1628, 3 Car. 1, c. 1; the Habeas Corpus Act of 1640, 16 Car. 2, c. 10; the Habeas Corpus Act of 1679, 31 Cha. 2, c. 2; the Triennial Act of 1641, 12 Cha. 1, c. 12; the Bill of Rights of 1869, I Wm. & Mary Sess. 2, c. 2.

[47] See Dylan Thomas, Do Not Go Gentle into That Good Night, in Dylan Thomas, Selected Poems, 1934–1952 (Rev. ed. 2003).

[48] Larkin, supra note 36 (manuscript at 32).

[49] For discussions of the events of that period, see, for example, Edmund Burke, Reflections on the Revolution in France (1982) (1790); Christopher Hill, The Century of Revolution, 1603–1714 (1982); Thomas Babington Macaulay, The History of England from the Accession of James II (1979) (1848); and Steve Pincus, 1688: The First Modern Revolution (2011).

[50] See Philip Hamburger, Is Administrative Law Unlawful? 65–69 (2015); Delahunty & Yoo, supra note 16, at 804–08.

[51] See Hamburger, supra note 50, at 66.

[52] See Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 856–57 (1978) (“The ideas of fundamental law, so dominant in 17th-century England, were subtly undermined in that country by the course of political history. The events of the Cromwellian period, the Restoration and the Revolution of 1688, and finally the evolution of the system of ministerial government under the Hanoverian Kings, all tended to create a practical legal supremacy in Parliament. Whig theory and practice made royal authority subordinate to Parliament, and Godden v. Hales [89 Eng. Rep. 1050 (K.B. 1686)] in 1686 represented the court’s last imposition of a constitutional limit on parliamentary authority in the name of the royal prerogative. The constitution came to be seen less as a body of principles limiting governmental power, and more as a set of institutions headed by a Parliament that possessed ultimate authority to change customary arrangements by legislation.”) (footnotes omitted).

[53] See Charles Howard McIlwain, The American Revolution: A Constitutional Interpretation 3, 43 (1923).

[54] See Arthur L. Goodhart, “Law of the Land” 50 (1966); Kenneth O. Morgan, The Oxford History of Britain 8 (2010); 4 John Phillip Reid, Constitutional History of the American Revolution: The Authority of Law 55 (1987).

[55] Radin, supra note 40, at 1090–91 (“There is, of course, no doubt now that Magna Carta could be abolished by Act of Parliament. I am fairly convinced Chapter 29 [the renumbered version of the original Article 39] will not be. And it seems to me clear that what will prevent its abolition is the sense that, since at least 1297, it has been something more than a statute; it has been an assertion of the existence of fundamental rights of free men, however differently they might have been listed at different periods.”).

[56] See Hamburger, supra note 50, at 69.

[57] “One principle upon which all Englishmen then agreed was the rule of law. When in the late eighteenth century, they spoke of the ‘liberties of free-born Englishmen,’ the rule of law was in the back of their minds: resistance to Charles I in the name of law, vindication of law against James II. Colonial leaders were familiar with the works of Algernon Sydney, [James] Harington, and [John] Locke, who urged every Englishman to resist every grasp for power; to stand firm on ancient principles of liberty, whether embalmed in acts of Parliament or adumbrated in the ‘Law of Nature.’” Samuel Eliot Morison, The Oxford History of the American People 180 (1965).

[58] See William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, at 13 (1994); at 141–42 (“[T]he restraint of governmental power and the security of individuals in their lives, liberties, and property were among the most intense concerns of free colonial British Americans of all social classes and that in Massachusetts they managed, to an extraordinary degree, to construct a polity that thoroughly reflected these concerns.”); see also, e.g., Jack P. Greene, The Constitutional Origins of the American Revolution 4–5 (2011); Edmund S. Morgan, The Birth of the Republic, 1763–89, at 6–7 (4th ed. 2013); H. D. Hazeltine, The Influence of Magna Carta on American Constitutional Development, 17 Colum. L. Rev. 1, 6 (1917).

[59] See the Bill of Rights of 1869, I Wm. & Mary Sess. 2, c. 2, §§ 1–2; Nelson, supra note 58, at 13. That act provided, in part, as follows: “Preamble: …Whereas the late King James the Second by the assistance of divers evil councillors, judges and ministers employed by him did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom. [¶] 1 By assuming and exercising a power of dispensing with and suspending of laws and execution of laws without consent of Parliament…All which are utterly and directly contrary to the known laws and statutes and freedom of this realm: …[¶]And thereupon the said lords spiritual and temporal and commons…declare: [¶] 1 Suspending power [¶] That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal. [¶] 2 Late dispensing power [¶] That the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal.”

[60] See Morgan, supra note 58, at 7.

[61] See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution 26, 85 (1988) (“American Whigs were not ambiguous about what they believed was the most general threat to liberty. It was arbitrary power.”).

[62] See id. at 29.

[63] U.S. Const. art. I, § 1; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952) (hereafter Steel Seizure Case) (“The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.”).

[64] U.S. Const. art. II, cl. 3; see Steel Seizure Case, 343 U.S. at 587–88 (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States * * *.’ After granting many powers to the Congress, Article I goes on to provide that Congress may ‘make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’”); Kendall v. United States ex rel. Stokes, 37 U.S. 524, 612–13 (1838) (“It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law, and this right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice. [¶] To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”).

[65] See, e.g., Walker v. Sauvinet, 92 U.S. 90, 93 (1875) (“Due process of law is process due according to the law of the land.”); Charles E. Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 369 (1891) (“it is well settled that ‘due process of law’ and ‘law of the land’ are identical in meaning”) (footnote omitted).

[66] See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).

[67] See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

[68] See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1989) (due process requires an agency to comply with its own rules); United States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as this regulation is extant it has the force of law.”); Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.”); Yellin v. United States, 374 U.S. 109 (1963); Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

[69] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1802).

[70] See The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457–58 (1868).

[71] See Armstrong, 517 U.S. at 464.

[72] See, e.g., David L. Engel, An Approach to Corporate Social Responsibility, 32 Stan. L. Rev. 1, 14–17 (1979).

[73] See An Act for the Punishment of certain Crimes against the United States, ch. 9, 1 Stat. 112 (1790).

[74] See, e.g., Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 726 (2013).

[75] Act of Mar. 3, 1905, ch. 1484 § 4, 33 Stat. 1214 (codified as amended at 31 U.S.C. §§ 1341–1351 (2012)).

[76] See Myers v. United States, 272 U.S. 52, 291–92 (1926) (Brandeis, J., dissenting) (“The separation of the powers of government did not make each branch completely autonomous. It left each in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial. Obviously the President cannot secure full execution of the laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress declines to create offices indispensable for that purpose; or because Congress, having created the office, declines to make the indispensable appropriation; or because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means are denied to the President, the fault will lie with Congress. The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted.”).

[77] The United States does not discuss the history noted above in its treatment of the Take Care Clause in its opening brief in United States v. Texas. See Pet. Br. 73–76.

[78] It is not odd to see the President’s Article II powers as limited. Whatever charging discretion he may have under the Take Care Clause, he may not charge someone with a crime simply because of the latter’s race. See, e.g., Armstrong, 517 U.S. at 463–67.

[79] See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015) (“[J]udicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations.”).

[80] Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J. L. & Pub. Pol’y (forthcoming 2016) (manuscript at 33).

[81] Congress cannot void or undermine a pardon. See Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867) (“This power of the President is not subject to legislative control.”); 2 Joseph Story, Commentaries on the Constitution of the United States § 1504, at 324 n.4 (2011) (4th ed. Thomas M. Cooley ed., 1873) (“Congress cannot limit or impose restrictions on the President’s power to pardon.”).

[82] For a detailed discussion of that point, see John G. Malcolm, President Obama’s Executive Action on Immigration Sets a Dangerous Precedent, The Heritage Foundation, Issue Brief No. 4313 (Dec. 4, 2014), http://thf_media.s3.amazonaws.com/2014/pdf/IB4313.pdf.


Paul Larkin
Paul Larkin

Rumpel Senior Legal Research Fellow