National Review has published my essay concerning the Unprecedented nature of the Supreme Court’s question presented in U.S. v. Texas. In short, the Court has never asked the President to prove that he is faithfully executing the law. Here is the introduction:
On four separate occasions, President Obama swore that he would “faithfully execute the Office of President.” Yesterday, the Supreme Court told him to prove it. As expected, the justices voted to review Texas’s challenge to Obama’s executive action on immigration, known as DAPA (Deferred Action for Parents of Americans). Critically, the Court ordered the Obama administration to answer a pivotal question: Whether DAPA “violates the Take Care Clause of the Constitution.” In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.
The Solicitor General urged the Court to avoid the constitutional question.
In November the United States appealed the case to the Supreme Court and asked the justices to consider two questions: First, whether Texas had suffered a sufficient injury to have standing to challenge DAPA in federal court; and second, whether DAPA complies with the APA. The government implored the Court to stay away from the constitutional question. In a footnote, the Justice Department wrote that “neither court below addressed” the “constitutional question,” which had “no independent content” — that is, the constitutional claim had no merit, and was not even worthy of consideration.
Though the Court gave the Solicitor General just about everything he sought–denying Texas additional time to file its BIO, and granting the petition without the customary relist–this was an important victory for Texas.
With this decision, the justices directed the president to justify DAPA and prove that his executive action on immigration is consistent with congressional design, not an effort to rewrite the law. Based on my initial research, this is the first time the Supreme Court has ever asked the president to state this constitutional case.
Make no mistake, this is in no way a statement on the merits. But it is significant:
Maybe the justices will agree with me, maybe they won’t. The mere fact that the Court asked the government to brief this question in no way suggests how it will rule. But at a minimum, the justices recognized that the resolution of this foundational case requires a full accounting of the separation of powers — including the president’s own testament. However the Court rules in this case, it will set a powerful precedent for presidents of both parties, who seek to rewrite the law without Congress. In 2016, the president of the United States will at last meet the Take Care clause.
Finally, on a historical note, I could only think of three cases where the Supreme Court has relied on the Take Care clause to limit the President’s power. (It is usually cited to bolster his authority in the context of the President’s power to supervise his officers).
First, in 1838, the justices invoked the clause to rein in a rogue postmaster general, originally appointed by President Andrew Jackson, who had chosen not to enforce a directive of Congress. In Kendall v. U.S. 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.” In other words, the executive branch cannot forbid the enforcement of the laws.
Second, in the landmark 1952 decision of Youngstown Sheet & Tube Co. v. Sawyer, the Court found that President Harry S. Truman lacked the authority to seize steel mills without congressional authorization. Justice Hugo Black concluded, “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.” Truman’s unilateral actions violated the Take Care clause.
Third is the Court’s 2008 decision in Medellin v. Texas, which was argued by then–Texas solicitor general Ted Cruz. In that case, the Court held that Congress had not yet not given President George W. Bush the statutory authority to enforce a treaty. Chief Justice Roberts, writing for a 6–3 majority, explained that this treaty could become binding only “through passage of legislation by both Houses of Congress,” not by the president’s unilateral action.
David Bernstein cites UARG as an example, but the ruling in that case was not constitutional. The Justices ruled against the EPA on administrative law grounds. I could not find any other constitutional decisions, where the President lost, and the Court relied on unfaithful execution. To be accurate, Medellin isn’t really an example, because the United States was not directly a party in interest. Also, Youngstown isn’t directly on point either, as it wasn’t really a Take Care case. I read through the briefs yesterday, and it was only mentioned a few times in passing by the steel industry.
Kendall may be the only case we have. I am currently in the process of researching this fascinating case. There is a lot to learn from the Jackson Administration and refusal to execute the law.