This is a timely and important hearing, because many of the legal controversies of the day implicate this Presidential duty. In areas as important and diverse as healthcare, immigration, nuclear waste storage, tax enforcement, military action, and foreign aid, there has been an inchoate sense that the Administration has overstepped its authority.
But the criticism has generally been issue‐specific, and it has often conflated policy objections with constitutional objections. There has been very little systematic analysis of this behavior as a pattern. And more to the point, there has been very little analysis of the particular constitutional clause at issue.
The relevant clause of the Constitution, which should be the lodestar of this discussion, is the Take Care Clause: “The President … shall take Care that the Laws be faithfully executed.“2 To put these recent controversies in constitutional context, it is essential to understand the meaning and purpose of this Clause. As always, it is best to begin by parsing the constitutional text.
First, notice that this Clause does not grant power but rather imposes a duty: “The President … shall take Care…“3 This is not optional; it is mandatory. Second, note that the duty is personal. Execution of the laws may be delegated, but the duty to “take Care that the Laws be faithfully executed“4 is the President’s alone. Third, notice that the President is not required to take care that the laws be “completely” executed; that would be impossible given finite resources. The President does have power to make enforcement choices — however, he must make them “faithfully.” Finally, it is important to remember the historical context of the clause: English kings had claimed the power to suspend laws unilaterally,5 but the Framers expressly rejected that practice. Here, the executive would be obliged to “take Care that the Laws be faithfully executed.“6
With these principles in mind, it is possible to view recent controversies through the proper constitutional lens. For this purpose, I shall focus on three recent examples — though, sadly, there are many others that one could choose. I shall focus on the President’s unilateral decision to suspend certain provisions of the Affordable Care Act, on the President’s unilateral abridgement of the Immigration and Nationality Act, and on the IRS’s targeting of the President’s political adversaries.
I. ObamaCare Suspension
On July 2, 2013, just before the long weekend, the Obama Administration announced via blog post that the President would unilaterally suspend the employer mandate of ObamaCare7 — notwithstanding the unambiguous command of the law. The statute is perfectly clear: It provides that these provisions become effective on January 1, 2014.8 The blog post — written under the breezy Orwellian title “Continuing to Implement the ACA in a Careful, Thoughtful Manner” — makes no mention of the statutory deadline.9
This blog post raises the question of what it means to “take Care that the Laws be faithfully executed.” Certainly, the adverb “faithfully” gives the President broad discretion about how best to deploy executive resources and how best to execute the laws.
And the precise scope of this discretion may be the subject of legitimate debate. But this breathtaking blog post was not a mere exercise of prosecutorial discretion or a necessary calibration of executive resources. This was a wholesale suspension of law, in the teeth of a clear statutory command to the contrary. Whatever it may mean to “Take Care that the Laws be faithfully executed,” it simply cannot mean declining to execute a law at all.
As if the suspension weren’t enough, President Obama’s comments about it on August 9, 2013 — claiming that “the normal thing [he] would prefer to do” is seek a “change to the law“10 — added insult to constitutional injury. Indeed, the President seemed annoyed when The New York Times dared to ask him the constitutional question.11 As for Republican congressmen who questioned his authority, Mr. Obama said only: “I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.“12 Mr. Obama made no mention of, for example, Iowa Sen. Tom Harkin — a Democrat, a lawyer and one of the authors of ObamaCare — who asked exactly the right question: “This was the law. How can they change the law?“13 Senator Harkin’s point, of course, is that a change like this is inherently legislative; it requires an amendment to the statute itself.
But the President has been distinctly ambivalent about any such amendment. A few months ago, he said that he would like to “simply call up the Speaker” of the House to request a “change to the law” that would achieve his desired delay.14 But the truth, as the President knows, is that he wouldn’t even need to pick up the phone: On July 17, 2013, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor).15 This would have authorized President Obama’s desired suspension of the law.16
But President Obama did not actually welcome this congressional ratification. To the contrary, this bill — which stood to fix the constitutional problem that he himself had created — the President deemed “unnecessary”.17 Indeed, he actually threatened to veto it.18 In this case, it appeared that the President would actually prefer to flout the law as written, rather than support a statutory change that would achieve his desired result. This seems an almost willful violation of the Take Care Clause.
II. Immigration and Nationality Act Suspension
The second example, immigration, is almost an exact mirror of the first. In the ObamaCare context, the President suspended an Act of Congress — a statute that was duly passed by both Houses of Congress, and which he himself had signed into law. In the immigration context, the situation is the opposite. Rather than declining to comply with a duly enacted statute, the President is complying meticulously — with a bill that never became a law.
Congress has repeatedly considered a statute called the DREAM Act, which would exempt a broad category of aliens from the Immigration and Nationality Act (INA).19 The President favored this Act, but Congress repeatedly declined to pass it.20 So, on June 15, 2012, the President announced that he would simply not enforce the INA against the precise category of aliens described in the DREAM Act.21 He announced, in effect, that he would behave as though the DREAM Act had been enacted into law, though it had not.22
Once again, the President does have broad prosecutorial discretion and broad discretion to husband executive resources. But in this case, it is quite clear that the President is not merely trying to conserve resources. After all, his Solicitor General recently went to the Supreme Court to forbid Arizona from helping to enforce the INA.23
And exempting as many as 1.76 million people from the immigration laws goes far beyond any traditional conception of prosecutorial discretion.24 More to the point, this exemption has a distinctly legislative character. It is not a decision, in a particular case, that enforcement is not worth the resources; rather it is a blanket policy which exactly mirrors a statute that Congress declined to pass.25 To put the point another way, the President shall “take Care that the Laws” — capital “L” — “be faithfully executed” — not those bills which fail to become law. Here, in effect, the President is faithfully executing the DREAM Act, which is not law at all, rather than the Immigration and Nationality Act, which is supreme law of the land. The President cannot enact the DREAM Act unilaterally, and he cannot evade Article I, section 7,26 by pretending that it passed when it did not.
Indeed, the President himself made this exact point, eloquently, only 20 months ago:
