Our Constitution strikes a stark asymmetry with respect to the duties and obligations of Congress and the President. In Article I, Congress receives no affirmative duties. “Congress shall have the power” to make a number of laws, but need not do so. The only duties Congress owe to the other branches concern compensation for the President and federal judges—these commands appear in Article II and Article III, respectively, not Article I. This structure reflects the framer’s design that the Congress need not, and indeed cannot act, unless majorities of the body agree.
Article II operates in a diametrically opposite manner on the unitary executive. Section I vests the office of the Presidency, and determines how he is elected. Section II grants the President a number of authorities. Virtually all of these duties are prefaced by shall: “shall be Commander in Chief,” and “shall have Power to grant Reprieves and Pardons.” Several of the key “shall” duties can only be exercised “by and with the Advice and Consent of the Senate,” such as the power to “make treaties,” and “nominate” Ambassadors, Ministers, Judges, and Officers of the United States. This consent need not be given at all.
The Constitution does not simply vest the President with powers concerning his own office, as Article I does with Congress. Article II imposes a duty on the President to execute the laws of Congress with those powers. Specifically, Article II, Section III defines the scope of the President’s affirmative obligations towards Congress.
First, the President “shall from time to time give to the Congress Information of the State of the Union.” This is a duty the President cannot shirk—the Congress must be apprised about the “State of the union” to inform its governance. Second, the President “shall receive Ambassadors and other public Ministers.” He must engage with this aspect of foreign diplomacy—an important limitation on what is sometimes viewed as an unfettered power over foreign affairs. Third, the President “shall Commission all the Officers of the United States.” Whatever positions the Congress creates, the President has an obligation to commissioner officers. Fourth, in case of “extraordinary occasions,” the President “may”—not must—“adjourn” or “convene” Congress. But this is not a duty the President “shall” execute. Indeed, so as not to unduly infringe on the Congress, the Constitution limited that responsibility to circumstances where the President “shall think proper.”
The fulcrum of the Constitution, on which the “Supreme Law of the land” is moved to Congress, the President, and the Courts, is the most important “shall” of all: the President “shall take Care that the Laws be faithfully executed.” Without the obligation for the Executive to execute the “Laws” faithfully, the statutes passed by Congress remain dormant, the rulings of the court remain unenforceable, and the sovereignty of the people is neglected. The textual significance of this clause is reflected by the deliberate language the framers selected.
First, this is a duty the President “shall” perform. Not “may,” or decline as he “shall think proper.” Shall. There is no other such command in the Constitution that mandates that any branch execute a delegated power—for good reason. The ability to dispense this power throws a wrench in the interlocking gears that power our republic.
Second, the President must “take Care.” Like the common law of torts, the Constitution imposes a standard of care. The President cannot proceed negligently or recklessly, but must take care faithfully.
Third, this duty extends not to the President’s own powers, or preferences, but to the “Laws.” What are these “Laws”? Read in the context of Article II, Section III, which reflects the relationship between Congress and the Presidency, this phrase is most naturally read to refer to the “Supreme Law of the Land.” Among these supreme laws, are the the Laws of Congress, which the President must execute.
Fourth, and most importantly, after imposing the imperative with the appropriate standard of care, and specifying the subject of the action, the Constitution defines how the duty should be complied with: “faithfully executed.” Several important insights can be gleaned. The usage of the passive voice confirms the obvious—the President need not execute all the laws personally. The officers of the United States, which the President appoints, and the Senate confirms, can complete these tasks. But the President’s supervisory role is to ensure that the laws are executed—and done so “faithfully.”
With this selection of “faithful,” the framers adopted a standard well known in the common law of contracts—one of good faith. The Constitution did not include language such as “shall think proper,” which would suggest a subjective good faith standard, based on how the President envisages his own independent duty to execute the law. Rather, the duty was pegged to the “Laws” of Congress, preferring an objective good faith standard based on what Congress would want the President to do in such a situation.
In this sense, akin to the law of agency, the President serves as a “faithful” agent to Congress, and to the people, the ultimate sovereigns, and residual of all legitimate governance. The people elect Congress to write the laws, and choose the President to enforce the laws on their behalf. Viewed this way, the Take Care clause is indeed the fulcrum that holds together our entire system of governance. The President always has an independent constitutional duty to not obey unconstitutional laws. But he must remain a faithful steward of the laws of Congress, and cannot shirk that duty when he disagrees with them.
This construction is confirmed by the Oath Clause of Article II: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Again, the framers required the President to swear that he will “faithfully execute” those duties charged to him. However, unlike the “Take Care” clause, which is imposed without qualification, the Oath only binds the President “to the best of [his] Ability.” In this sense, the imperative to “preserve, protect and defend the Constitution of the United States,” though it must be “faithfully executed,” exists to a lesser degree—to the “best of my Ability.” No such wiggle-room exists for ensuring that the Laws are faithfully executed.
Determining whether the President violates the “Take Care” clause entails an examination of these four components of the provision.
First, has the President declined to execute the law, in conflict with the command of “shall”? If the President abdicates the duty in its entirety, there is a clear case of a constitutional violation. Although in most cases, the failure to execute the law falls along a spectrum.
Second, is the president acting with “care,” or showing a reckless disregard or indifference for his duty? The more flagrant the disregard—evidenced by the size and scope of the deviation from the “Laws” of Congress—the stronger the case is for unconstitutional actions. Here, recourse must be had to the statutes enacted by Congress, and the legislative history towards the Law, to determine the disjunction between the policy of Congress and that of the Executive.
Third, does the “Laws” of Congress vest the Executive with discretion to decline to enforce the law, or has the Legislature given an unambiguous directive to the Executive with no wiggle room? If the President violated an unambiguous directive, the action should not be entitled to a presumption of deference.
Fourth, and most importantly, has the President executed faithfully. Due to the unavoidable dilemma of inadequate resources, even in good faith, the President will not be able to enforce all of the laws. Within that framework, the President can decide to allocate priorities. However, deliberately declining to enforce the laws, as a means to bypass laws the Executive dislikes, and Congress will not change, is not in good faith. To ascertain the state-of-mind of the President, the “sole organ” of the Executive branch, a careful study should be made of all official, and unofficial administration statements, particularly if they are against interest. If a pattern of behavior reveals a deliberate effort to act not in good faith, but in an effort to sabotage or undermine the Laws of Congress, the duty under Article II has been violated. Here, the President has dislodged Article II’s fulcrum, knocking out of orbit this fixed star in our constitutional constellation.