The Topsy Turvy Take Care Clause

July 20th, 2017

From 2014-2016, I was one of the few scholars who maintained that President Obama’s non-enforcement of the law ran afoul of his duty to take care that the laws are faithfully executed. Specifically, I charged that his inaction with respect to immigration (DACA and DAPA) and Obamacare (delay, suspension, and modification of the mandates) were not good faith exercises of the law. I developed these arguments at length, in law review articles, op-eds, amicus briefs, media appearances, and debates. For the most part, other scholars scoffed at my position, simply invoking the talisman of prosecutorial discretion. Other disparaged the notion that the Take Care clause was even justiciable.

Then Donald Trump happened. Almost overnight, the Take Care Clause had a renaissance. A blog by that name–which is quite fond of reviewing my work–sprouted up overnight. Countless posts charge that the President is not acting in good faith.

More recently, Noah Feldman used his influential Bloomberg column to assert that if President Trump declines to make the cost-sharing reduction (CSR) payments to insurers, he will violate his duty to faithfully execute the laws:

Trump’s goal in not enforcing the individual mandate would be, presumably, to generate the “death spiral” that economists predict would occur without that provision of the law: If healthy people don’t buy insurance, and the law continues to require insurance companies to cover anybody who applies regardless of pre-existing conditions, then lots of people will only buy insurance once they get sick. That would make the risk pool so undesirable that the price of health insurance would rise precipitously, which would in turn encourage fewer healthy people to buy insurance.

The difference then lies in intent. And that intent has a crucial legal basis: the word “faithfully” in the take care clause of the Constitution. The Constitution recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort. And declining to enforce the law so that the law itself ceases to be able to function isn’t good faith.

In contrast, nonenforcement that aims to make the law work counts as faithfulness.

The same faithfulness problem would exist, I believe, if Trump refused to pay insurance subsidies to poor Americans under the ACA — an idea he has discussed before — with the specific goal of making the law fail.

When I read this, I had to do a double-take. This argument is, almost to a tee, the arguments Ilya Shapiro, Randy Barnett, and I advanced in our amicus brief for U.S. v. Texas: the Take Care imposes a duty of good faith on the presidency. Absent actual constraints on resources, the President cannot decline to enforce a law, simply because he disagrees with it. I developed in my article in the Texas Review of Law & Politics, at some length, that at the time of the framing, the phrases “take care” and “faith” was understood to be based on the contract doctrine of good faith. (I welcome citations, even from those I disagree with!) On similar lines, Randy is working on a book on good faith constitutional construction with Evan Bernick.

Moreover, Feldman discards the previous orthodoxy, and suggests that the Take Care Clause should be justiciable.

Given that conservative courts did try to block Obama’s nonenforcement of immigration law, we could potentially see lawsuits against Trump’s nonenforcement of the ACA, especially if he makes a formal directive. The legal merits of such a challenge are worth further discussion, especially for anyone who, like me, thought the Texas court and 5th Circuit went too far in blocking Obama’s discretion.

Cristian Farias observes that a take-care clause suit may already be in the works:

This self-perpetuating, self-inflicted death spiral turns the Constitution on its head. And thus states like New York, which have already intervened to save other aspects of Obamacare, would be well within their rights to take Trump to court over a law that he’s duty-bound to execute. There’s already talk that that’s in the cards: Deepak Gupta, one of the big-time lawyers behind a major emoluments challenge to Trump, told Reuters in April that a take-care lawsuit may one day become a reality. In the wake of Trump’s new threat that he wants to end billions in subsidies for low-income enrollees, that day may already be here.

I am thrilled that, at long last, the Take Care Clause is being taken seriously. I’ll avoid the “You, too” fallacy, and welcome these constitutionalists to the good faith party.

Back in March I listed a number of illegal suspensions the Trump administration should avoid with respect to Obamacare: namely, the continuation of President Obama’s modifications of the employer and individual mandate. Alas, the Supreme Court already denied cert on West Virginia’s challenge to the “administrative fix,” which tweaked the individual mandate. The House of Representatives lawsuit challenging the delay of the employer mandate petered out. However, if Gupta Wessler or the California AG decides to give it another go, and challenge either of these modifications, I will be glad to dust off my old amicus briefs and try again.

Feldman, however, did not focus on these egregious suspension of the law. Rather, he wrote about what would happen if President Trump ordered the cessation of cost-sharing reduction (CSR) subsidies. Here, however, I part company with the take-carers. Congress never appropriated the funds to make those payments. Where there is no law to execute, the President is under no duty to act. To the contrary, as I wrote in Unraveled, President Obama’s decision to make those payments, without an appropriation, was itself a violation of the Take Care Clause. The duty to faithfully execute the laws presumes there is a law to execute; here the President in effect rewrote the law. As Justice Black observed in Youngstown, “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. ” Of all the Trump policies that make me shake my head, halting the CSR payments would be a positive step towards embracing the rule of law. Alas, such is not the case. The administration has announced that the payments will continue. I suspect this argument will be much ado about nothing.

The topsy-turviness on the Take Care Clause is not limited to the left. Conservatives are also shaking things up. The Wall Street Journal has lambasted a cohort of state Attorneys Generals that have promised to challenge the legality of DACA unless the Trump Administration rescinds the policy. (Before I address the merits, I must note that the editorial completely mischaracterized the careful position articulated by the AGs: they do not seek to rescind the lawful presence of, or deport, any DACA recipients; rather, they ask the government not to issue new authorizations). Throughout the Obama administration, this editorial page carried a constant attack on the President’s lawless abuse of the Constitution, supporting the barrage of litigation against him. (I contributed a few entries!). Now, gone from that space is concern for the faithful execution of the laws:

DACA has similar constitutional deficiencies, but the way to address them is through Congress, not by Republicans suing a GOP President who didn’t write the law . . . . The state AGs have higher priorities than chasing down law-abiding young people contributing to American society, and a lawsuit would be political grandstanding rather than sensible law enforcement.

President Trump cannot “write the law”; nor can President Obama. But both have a duty to faithfully execute it. DACA is an unlawful suspension. The AGs did not ask the government to deport anyone. Rather, they are seeking the enforcement of the law of law. And good for them.

Yesterday I spoke at a conference on constitutional law hosted by Texas Attorney General Ken Paxton. At the outset of the event, General Paxton expressed pride that his office challenges the abuse of law by Republican and Democrat presidents alike. Paxton expressly referenced the DACA case. He is exactly right. If this goes to litigation, I will gladly dust off my briefs, change the Ps to Cs, and argue that DACA is unlawful.


What a topsy-turvy world we live in.