My Quick Take: The Take Care Clause Disputes

A lot of the excitement in the legal blogosphere this week has focused on the Supreme Court granting review of the 5th circuit case regarding DAPA, in U.S. v. Texas. This case is about the President’s actions regarding suspension of certain immigration laws, the details of which I will not analyze in this post (if ever). However, of particular note is that the Court added a question regarding the Take Care Clause, which states that the President “shall take care that the Laws be faithfully executed.” As a result there has been a lot of blogging and even disputes regarding what duty is imposed on the President and when may the executive branch rely on prosecutorial discretion and refuse to enforce a law.

Among the many posts (many of which I have linked throughout this post and all deserve a reading). I found a segment from Ilya Somin with which I could not agree. Somin has stated that he agrees with the President’s actions and feels it is within his power to suspend enforcement of laws as the President. Generally my views are similarly aligned with Somin on most issues, but I felt his justifications a bit thin regarding the Take Care Clause. In particular the following suggestion, he writes:

Such sweeping executive discretion is troubling in many ways. Among other things, it creates obvious opportunities for selective prosecution. But the way to address this problem is to cut back on the scope of federal law, and limit its reach to issues where there is a broad consensus that the law in question should be aggressively enforced and the president has sufficient resources to target a high percentage of violators. We will not solve it by means of court decisions that invalidate systematic, transparent exercises of presidential authority like this, and thereby simply shift executive discretion to the more shadowy realm of behind-the-scenes “case by case” determinations.

I do not disagree with Somin that one way to address selective prosecution is to cut back on the scope of federal law, such an analysis should be required of lawmakers and failing to take into consideration the actual ability to enforce a given law should carry political consequences. However, this is unsatisfactory under the context of the Take Care Clause generally, which is a Constitutional mandate and as such is an institutional requirement and not a political response. Certainly the legislature can be wiser in what they require of the executive branch, but it does not appear to meet the textual requirements of the clause to suggest that this is the only or primary safeguard except in cases of genuine abuse. Furthermore reducing the scope of law to the point of a broad consensus is already presupposed by the legislative process and similarly should be removed through that same process unless there is a Constitutional conflict. If consensus is the issue then such consensus may only validly be met through the legislative process.

As Randy Barnett has pointed out, the words of the Take Care Clause indicate a duty similar to that of good faith in contract law. Thus the motivation for the lack of enforcement should be considered when evaluating this Constitutional constraint, but moral considerations are not likely sufficient, as Somin wrote, “presidents are entitled to use moral and policy considerations in determining which lawbreakers to pursue and which ones to ignore.” These grounds are particularly concerning since the Take Care Clause fails to indicate such discretion, but suggests the opposite as it declares the President “shall take care that the laws be faithfully executed.” (emphasis added)

If the President, or any candidate with such presidential aspirations, has moral qualms or opposition to a law he should encourage the correct body (Congress) to address such issues, and he is not entirely powerless to do so. However the very purpose of separation of powers is to remove the judgment of one (even moral judgment) with that of many regarding law-making, something that should not be easily undone.

Also, the President sought the office and should be bound by the terms of that office even when he disagrees with those terms. If a President’s moral opposition to the law is so strong he should reconsider his position at the head of the executive branch. Much like judges who have an obligation to uphold the law even when they disagree with what the law is, so does the President. (Imagine if every conservative federal judge ignored Roe v. Wade). It is worth noting that moral opposition is not the same as the executive branch finding a law unconstitutional where the President would be bound, perhaps even by the same clause, to uphold the Constitution and refuse enforcement.

As Josh Blackman pointed out, the Take Care Clause has rarely been adjudicated and most of the previous cases do not address the question directly. The most relevant appears to be Kendall v. U.S. where the Court ruled: “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.” Blackman summarized, “In other words, the executive branch cannot forbid the enforcement of the laws.” Though I have no way of knowing how this case will be determined, I do not think the Take Care Clause is as permissive as Somin suggests even if the President wins on the merits (meaning he was faithfully executing the law). Perhaps I have missed something in my post regarding his position, and in no way am seeking to mischaracterize. I do think there is a genuine disagreement regarding what the clause does and does not require that is well worth discussing.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to or follow him on twitter @jcdevereaux1. All views are my own.

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