At the Originalism Blog, Mike Ramsey expressed his doubts about my view on executive action, noting that there is nothing in the Take Care clause that prohibits a categorical decision not to enforce elements of the law.
I have been planning on doing some more thinking about the “Take Care” clause itself, and his post has motivated me to dig further.
I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.”
What does “faithfully” mean? It would seem to impose some kind of “good faith” standard. Now, is that an objective “good faith” standard–that is, what would Congress want the President to do in such a situation. Or a “subjective” good faith standard–that is, how does the President view his own independent duty to execute the law. I could go either way on this question, but I think a colorable argument can be made that the former is better.
The President serves as a “faithful” agent of Congress, charged to execute the laws it enacts. (This is the basis of the modern administrative state and the non-delegation doctrine). The President always has an independent constitutional duty to not obey unconstitutional laws, but the President still must be a faithful steward of the laws of Congress.
It is here that I think the disconnect occurs. It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed. With respect to immigration, the President has said as much, that he thinks the laws are “broken” and he wants to change it.
I’m still giving this topic thought, so my analysis is tentative.
Update: Timothy Sandefur offers more thoughts on the text of the Constitution in response to Ilya Somin’s article in Reason (which I will respond to in due time).
First, Tim has similar thoughts about the weight of the word “faithfully.”
First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.
That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.
Tim also weighs in on the issue of suspensions, with citations to the Virginia Bill of Rights and the 1689 Bill of Rights:
This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”
There is no other reason for this constitutional sentence except to prohibit the President from choosing to suspend the enforcement of duly enacted laws—and if you were going to write a constitutional provision to prohibit the President from refusing to enforce the laws, and wanted to write that provision in the strongest possible terms, you would use exactly the language that this provision uses. You would mandate in the strongest language of the Constitution, that the President take care faithfully to execute the laws.
The prohibitions on “suspension” in the Virginia Bill of Rights and the 1689 Bill of Rights that I’ve quoted above were largely inspired by the King issuing patents to bar application of the Test Oath. Those didn’t prohibit future prosecutions. They just suspended the application of the laws. (Royal courts held this to be constitutional, which is why the Bill of Rights was necessary.) Thus prohibitions on future prosecution aren’t synonymous with illegal suspension of the law, nor the sine qua non of faithlessness under our Constitution.
And citations to Justice Story:
Justice Story explains: “The great object of the establishment of the executive department is, to accomplish…a faithful execution of the laws…. The true interpretation of the clause is, that the President is to use all such means as the Constitution and laws have placed at his disposal to enforce the due execution of the laws. As, for example, if crimes are committed, he is to direct a prosecution by the proper public officers, and see, that the offenders are brought to justice.” Familiar Exposition, §292.
There is thus not only no basis in the Constitution for concluding that the President may decide upon a policy of refusing to enforce the law simply because he disagrees with it, but such a proposition is obviously contrary to the spirit, and to the plainest possible letter, of the Constitution.
Tim makes a strong point–not being able to enforce all of the laws due to limited resources is acting faithfully. Not enforcing them due to policy disagreements is not faithful.
What are Prof. Somin’s reasons for saying that Pres. Obama’s decision not to enforce the law because he doesn’t like the law is “well within the scope of executive authority under the Constitution”? His answer is that because a President and his deputies have limited resources and must therefore prioritize what crimes to punish, they inevitably leave some crimes unpunished, and this is no different from that.
Of course, it is completely different—and the difference lies in the word that Prof. Somin essentially ignores: “faithfully.” A President who tries, but is unable, to prosecute all crimes because of his limited resources is not acting unfaithfully—he’s doing his best, but can’t do everything. Nobody would contend, and nobody has contended, that the President is untrue to his obligations in such cases. But where the President chooses not to enforce a law for a corrupt reason—for an unfaithful reason—he does violate his oath. …
Why is it unfaithful to simply proclaim that someone hasn’t violated the law at all, so as to prevent future prosecution, but not unfaithful to refuse to enforce the law now, thus preventing prosecution now, and possibly in the future, for the purpose of obstructing the due administration of the law, which is what Pres. Obama is doing? Prof. Somin gives us no answer. He says that the President “cannot choose which offenders to prosecute based on the race, sex, religion, or political views of the potential defendants,” because apparently this would be “unfaithful.” Yet he says that the President can choose which offenders not to prosecute, based on similar factors—based on his own sense of compassion, identity politics, and personal policy preferences. Why is one okay and one not? Again, Prof. Somin gives no answer.
Thus, notwithstanding his protestations to the contrary, Professor Somin, like Professor Obama, has read the word “faithfully” out of the Constitution.