Article II, Section 3 both grants and constrains presidential power. This Section invests the President with the discretion to convene Congress on “extraordinary occasions,” a power that has been used to call the chambers to consider nominations, war, and emergency legislation. It further grants the President the authority to adjourn Congress whenever the chambers cannot agree when to adjourn, a power that no President has ever exercised.
Section 3 imposes obligations on the President that are varied and significant. The President must provide information on the “state of the union” from “time to time.” This seems to require the President to share information with Congress. The President shall “recommend” measures to Congress, a soft duty that necessarily cedes discretion. The President “shall receive” all foreign ambassadors, a duty that many suppose grants Presidents authority over whether to recognize foreign nations and their governments. The President “shall Commission all the officers of the United States,” a Clause that forces the President to authenticate the status of federal officials.
Finally, and most significantly, Section 3 contains the Faithful Execution Clause, commonly known as the Take Care Clause. The Take Care Clause is arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.
The Take Care Clause has played a central role in momentous constitutional disputes. Legislators have discussed it in many debates regarding the scope of presidential power, including whether the President has a constitutional power to remove federal officers. Two Presidents, Andrew Johnson and William Clinton, were impeached by the House, at least in part, for allegedly violating their Take Care Clause duties. Famous Supreme Court cases, like Youngstown Sheet & Tube v. Sawyer (1952) and Myers v. United States (1926), relied upon particular claims about the Clause. More recently the Clause played a central role in the debates and litigation surrounding President Barack Obama’s enforcement of federal immigration laws.
The Clause traces back to the 1776 Pennsylvania Constitution and the 1777 New York Constitution. Both granted their executives “executive power” and also required them to execute the laws faithfully. Early constitutional discussions shed some light on its meaning. Though the Clause is found amidst a sea of duties in Article II, Section 3, some, including Alexander Hamilton, spoke of the “power” of “faithfully executing the laws.” While President, George Washington observed, “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty.
At a minimum, the Clause means that the President may neither breach federal law nor order his or her subordinates to do so, for defiance cannot be considered faithful execution. The Constitution also incorporates the English bars on dispensing or suspending the law, with some supposing that the Clause itself prohibits both. Hence the Constitution itself never grants the President authority to either authorize private violations of the law (issue individualized dispensations) or nullify laws (suspend their operation).
Beyond these constraints, the Clause raises a number of vexing questions. For instance, must the President enforce even those laws he or she believes to be unconstitutional? Some scholars argue that Presidents must enforce all congressional laws, without regard to his or her own constitutional opinions. Yet modern Presidents occasionally exercise a power to ignore such enactments on the grounds they are not true “laws” subject to the faithful execution duty. In so doing, they somewhat mimic the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act on the grounds that it was unconstitutional.
There is also the related question of whether the President must honor statutes that purport to limit his or her authority over law execution. Can Congress decree by statute that the President must allow others to implement certain statutes without regard to presidential supervision or oversight? Again, some suppose that the Congress can insulate execution from presidential control while others insist that the Congress cannot strip away the President’s duty.
Finally, the sweep of contemporary federal law ensures that federal law enforcers have tremendous enforcement discretion. In particular, resource constraints coupled with numerous violations often preclude a policy of total enforcement. Given the inevitable tradeoffs, modern Presidents weigh the costs and benefits of investigation, apprehension, and prosecution, and sometimes create rules for allocating scarce resources across the range of possible investigations and prosecutions. In this context, judging what counts as faithful execution is laden with value judgments about the relative merits of certain enforcement priorities over others. Moreover, contentious disputes about the scope of discretion invariably revolve around claims that the President has violated his or her duty of faithful execution by failing to adopt a particular enforcement policy or strategy.
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.
This essay is part of a discussion about Article II, Section 3 with William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law. Read the full discussion here.
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.
This essay is part of a discussion about Article II, Section 3 with Saikrishna B. Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.
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. Given that the Constitution was designed to allow branches to check other branches, one should be cautious in interpreting particular provisions in a manner that would add to the current imbalance.
Some have argued, for example, that the Take Care Clause should be interpreted to prevent the creation of independent agencies 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 scope and breadth of the administrative state, there are often strong reasons for insulating particular agencies from political control in order to foster independent, nonpartisan decisionmaking.
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.