Article II, Section 3

Most of Article II, Section 3 has been inconsequential. Yet there are notable changes in practice that bear on that section. Despite the State of the Union Clause, the executive is increasingly unwilling to share information with Congress. Citing “executive privilege” (the right to keep secrets from the courts and Congress, endorsed by the Supreme Court in United States v. Nixon (1974)), the executive often withholds information from Congress. Another revolution concerns the extent of the President’s leadership in legislation. When Presidents “recommend . . . measures,” they now do so as the de facto head of their party and with the predictable support of a good portion of the two chambers. As a result, Presidents are often the primary driver of legislation and legislative agendas, particularly in the first months of their first term (the period of “100 days”).

The Take Care Clause has the most modern resonance. By virtue of his “executive Power,” the President may execute federal laws and control executive officers who execute those laws. The Take Care Clause modifies that grant, requiring the President to “take Care that the Laws be faithfully executed.” At the Founding, the President’s power over law execution was praised as ensuring prompt and vigorous implementation of laws, something lacking under the Articles of Confederation. As one opponent of the Constitution noted, law execution was best entrusted “to the direction and care of one man.” A single executive seemed “peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity.” The chief executive would ensure wise, prompt, and uniform law execution by “direct[ing]” subordinate executives.

The Take Care Clause is the focus of several ongoing disputes. First, consider restrictions on the removal of officers. In a series of unfortunate cases, the Supreme Court has sanctioned the creation of independent agencies, which operate as a fourth branch of government. These agencies execute various federal laws (communications, banking, securities) by investigating and prosecuting alleged violations. Congress has protected these agencies from executive influence by imposing “for cause” restrictions on the removal of their top officers. It is hard to escape the conclusion that such statutes are unconstitutional. They violate the grant of executive power and interfere with the Take Care Clause duty. In creating mini-fiefdoms, Congress has essentially stripped away the President’s executive power and granted it to these agencies. Moreover, Congress has erected statutory obstacles making it rather difficult for the President to judge whether the law is being faithfully executed.

Second, there are continuing disagreements about whether the President must abide by, defend, and enforce laws that he regards as unconstitutional. Presidents sometimes declare that because they believe parts of a law to be unconstitutional, they will ignore those provisions. Some scholars have argued that the Take Care Clause prohibits the President from refusing to honor, defend, and enforce federal laws. Once a bill becomes law, the President must enforce it. A contrary (and better) view supposes that unconstitutional laws are void from the beginning and thus not subject to the Clause. Though the Supreme Court has never held that the President may decline to enforce unconstitutional statutes, numerous Justices have hinted at such authority. Moreover, the practice goes back to Thomas Jefferson, when he refused to continue prosecuting individuals for violations of a statute he believed to be unconstitutional. Jefferson said that the alleged statute (the infamous Sedition Act) was no law at all and hence not subject to the Take Care Clause.

Lastly, there are recurring clashes about when and whether the President may decline to enforce statutes based on policy reasons. The Constitution never conveys any power to decline to enforce (to suspend) a statute. That much is clear. Yet despite this constraint, Presidents will almost necessarily enjoy a great deal of enforcement discretion. To begin with, using his constitutional power to pardon, the President can forgive offenses even before trial or conviction, meaning that executive officers need not investigate and prosecute every offender of federal law. Moreover, resource constraints coupled with innumerable violations of federal law preclude complete enforcement of all federal laws. There are too many laws, too many scofflaws, and but limited resources. Given the inevitable tradeoffs, Presidents may allocate scarce enforcement resources after weighing the costs and benefits of investigation, apprehension, and prosecution.

Recognizing that it would be highly impolitic to assert a constitutional power to decline to enforce statutes, modern Presidents carefully avoid embracing such a power. Instead, they invariably argue that the laws implicitly or explicitly convey enforcement discretion. Critics of these presidential measures deny that the statutes in question grant discretion and argue that in declining to enforce a law the President has violated his Faithful Execution duties. Discerning the truth of the matter requires a careful consideration of the relevant statutes, including enforcement resources. Sometimes there are no easy answers.

At the time of the Framing it was assumed that the most powerful branch of government was the legislature. That is one of the reasons why Congress was made bicameral while the executive was unitary—so that legislative power and executive power could be effectively balanced. Today, however, any notion that Congress is twice as powerful as the Presidency would be dismissed as fanciful. The Presidency is the most powerful branch.

Article II, Section 3 has not played a major role in presidential power expansion (although as discussed below, it should be interpreted in light of that expansion). Rather the scope of presidential power has been determined more by how executive power has actually been exercised than by constitutional text. As Justice Jackson observed over 50 years ago in Youngstown Sheet & Tube v. Sawyer (1952), “[t]he Constitution does not disclose the measure of actual controls wielded by the modern presidential office. . . Vast accretions of federal power . .  . have magnified the scope of presidential activity [so that] the centers of real power . . . do not show on the face of the Constitution.”

There are a number of reasons why the President has become so dominant.  First, the Presidency has become the focus of national power and culture, giving the President the unique ability to set the political agenda. In Justice Jackson’s words: “[e]xecutive power has the advantage of concentration in a single head in whose choice a whole nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”

Second, presidential power has expanded because each successive President is able to rely on the actions of their predecessors in justifying their own use of power. In this way, the use of presidential power works as a one-way ratchet with each President building on the actions of those that came before.

Third, presidential power has grown because the size and jurisdiction of the federal government have expanded. The President directs an administrative state that oversees everything from prescription drugs to smoke stack emissions to college sports and from economic development to workplace safety to national parks management. As a result, the President has the ability to make decisions that reach almost every aspect of American life. Further, as head of the federal government, presidents have unparalleled resources to use in advancing their political agenda. This includes access to military and civilian intelligence, the expertise and assistance of countless federal agencies, and the command of the most powerful military in the world. No other branch has such resources at its disposal.

Fourth, presidential power has expanded because of the need for exigent decisionmaking in the modern world. The suddenness with which contemporary events demand government response inevitably invests power in the only branch capable of reacting immediately—the Executive.

Fifth, presidential power has increased because of the changed nature of politics. In the current political environment, those elected to Congress often see their political duty as supporting their party rather than protecting their institutional concerns as legislators. For that reason, many are unwilling or unable to check the President’s power when their party is in the majority. Further, and paradoxically, contemporary politics has served to increase presidential power even when the Presidency and the Congress are controlled by different parties. In those circumstances, Congress has at times so rigidly opposed a President’s agenda that Presidents have been able to claim that their use of unilateral executive power is necessary to overcome Congress’s “obstructionism.”

It is against this recognition of presidential power dominance that specific issues raised by Section 3—and particularly the Take Care Clause—should be analyzed. For example, some have argued, under the so-call theory of the unitary executive, that independent agencies such as the Federal Communications Commission and the Federal Reserve are unconstitutional because protecting the officers in those agencies from removal at will by the President interferes with the latter’s ability to execute the law as they see fit. But given the vast expansion of presidential power since the founding, the unforeseen scope and breadth of the administrative state, and the fact that the constitutionality of independent agencies has been upheld since the Supreme Court’s decision in Humphrey’s Executor v United States (1935), such arguments seem fundamentally misplaced.  After all, the structure of the Constitution was designed to create a system of checks and balances under which no branch would become too powerful.  Insulating particular agencies from political control in order to foster independent, nonpartisan decision making fully supports that core purpose.  

Concerns with centering too much power in the Presidency also arise in relation to whether Presidents must comply with and defend laws that they believe are unconstitutional. Some contend that the Take Care provision grants Presidents wide discretion to disregard laws that they believe are unconstitutional even when there are substantial arguments to the contrary. Others suggest that Presidents may only refuse to comply with or defend laws when there is absolutely no credible constitutional defense of those provisions. Given that reasoned constitutional interpretation varies so widely, the latter may be the better route. Otherwise, Presidents may be able to end-run the actions of Congress too easily. 

Similar concerns arise with a President’s refusal to enforce laws on policy grounds. Presidents have, and should have, wide-ranging discretion on how to enforce particular laws. As Professor Prakash points out in his essay, enforcing every federal law against every offender would be impossible. Further, there seems to be little doubt that Presidents may take policy considerations into account when setting enforcement priorities. But when Presidents use their enforcement power to essentially invalidate or re-write statutes with which they do not agree, serious questions arise as to whether they are meeting their “take care” obligations. The problem, of course, is determining when a President’s actions are legitimate uses of enforcement discretion and when they are, in effect, illegitimate usurpations of legislative authority. To this point, the courts have not yet come up with an answer to this question. But at some point, they will be forced to.