ArtII.S3.1.3.1 Take Care Clause: Overview

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Constitution does not say that the President shall execute the laws, but that he shall take Care that the Laws be faithfully executed, i.e., by others. What powers are implied from this duty? In this connection, five categories of executive power should be distinguished: first, there is that executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive (administrative) agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called ministerial duties which admit of no discretion as to the occasion or the manner of their discharge. Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the Take Care Clause to the powers of other executive or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States? 1

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offenses against the United States. . . . So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President.2 Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into an Establishment by name of the Smithsonian Institute. Here, says the Attorney General, the President’s name of office is designatio personae. He was also of opinion that expenditures from the secret service fund, in order to be valid, must be vouched for by the President personally. 3 On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War. 4 This case has, however, been virtually overruled, and at any rate such cases are exceptional. 5

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President’s acts. 6 Williams v. United States7 involved an act of Congress that prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President. 8 The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President’s duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform. 9 As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President. 10

Power and Duty of the President in Relation to Subordinate Executive Officers

If the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to take Care that the Laws be faithfully executed, to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power, Madison argued that it ought to be attributed to the President alone because it was the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department, and this responsibility, he held, carried with it the power to inspect and control the conduct of subordinate executive officers. Vest, said he, the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.11

But this was said with respect to the office of the Secretary of State, and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress’s own powers and should therefore be protected against the removal power. 12 And in Marbury v. Madison, 13 Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a Department of Foreign Affairs and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the political field, and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was an officer of the law and amenable to the law for his conduct.14

Administrative Decentralization Versus Jacksonian Centralism

An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President’s duty under the Take Care Clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecutions. 15 The opinion entirely overlooked the important question of the location of the power to interpret the law, which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress’s specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson’s Protest Message of April 15, 1834, 16 defending his removal of Duane as Secretary of the Treasury, because of the latter’s refusal to remove the deposits from the Bank of the United States. Here it is asserted that the entire executive power is vested in the President; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates; that in the performance of these duties the Secretary was subject to the supervision and control of the President; and finally that the act establishing the Bank of the United States did not, as it could not change the relation between the President and Secretary – did not release the former from his obligation to see the law faithfully executed nor the latter from the President’s supervision and control.17 In short, the President’s removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his subordinates in all their official actions of public consequence.

Congressional Power Versus Presidential Duty to the Law

The Court’s 1838 decision in Kendall v. United States ex rel. Stokes, 18 shed more light on congressional power to mandate actions by executive branch officials. The United States owed Stokes money, and when Postmaster General Kendall, at Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. Although Kendall, like Marbury v. Madison, involved the question of the responsibility of a head of a department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court’s own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President’s power in the field of foreign relations.

The Court rejected the implication with emphasis. There are, it pointed out, certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.19 In short, the Court recognized the underlying question of the case to be whether the President’s duty to take Care that the Laws be faithfully executed made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

Myers Versus Morrison

How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court’s decision in Myers, on the one hand, and its decision in Morrison, on the other. 20 The first decision is still valid to support the President’s right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution, and also to remove many but not all officials – usually heads of departments – through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of the President, and those acting for him, by imposition of a good cause standard, subject to a balancing test. That is, the Court now regards the critical issue not as what officials do, whether they perform purely executive functions or quasi legislative or judicial functions, though the duties and functions must be considered. Rather, the Courts must ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty under Article II to take care that the laws be faithfully executed. 21 Thus, the Court continued, Myers was correct in its holding and in its suggestion that there are some executive officials who must be removable by the President if he is to perform his duties. 22 On the other hand, Congress may believe that it is necessary to protect the tenure of some officials, and if it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not of such a nature as to impede the President’s ability to perform his constitutional duties. 23 The officer in Morrison, the independent counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her tenure and no showing that the restriction unduly trammels presidential powers. 24

The bright-line rule previously observed no longer holds. Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.

Power of the President to Guide Enforcement of the Penal Law

This matter also came to a head in the reign of Andrew Jackson, preceding, and indeed foreshadowing, the Duane episode by some months. At that epoch, Wyman relates in his Principles of Administrative Law, the first amendment of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter – The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels . . . were stolen from the Princess by one Polari and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by a request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it – I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President’s order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President.25

The President as Law Interpreter

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court’s reading of such statutes or of the Constitution, 26 but he sometimes makes law in a more special sense. In the famous Neagle case, 27 an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be a law of the United States in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Miller inquired: Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?28 Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption that is borne out by numerous precedents. And, in United States v. Midwest Oil Co., 29 the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, Congress having never repudiated the practice.

The President as Executor of the Law of Nations

Illustrative of the President’s duty to discharge the responsibilities of the United States in international law with a view to avoiding difficulties with other governments was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts, on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be endangered, by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant . . . should he deem it necessary in securing obedience to his proclamation of neutrality.30

Footnotes

  1.  Jump to essay-1In Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992), the Court purported to draw from the Take Care Clause the principle that Congress could not authorize citizens with only generalized grievances to sue to compel governmental compliance with the law, inasmuch as permitting that would be to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’ Id. at 577.
  2.  Jump to essay-27 Ops. Atty. Gen. 453, 464-65 (1855).
  3.  Jump to essay-3Cf. 2 Stat. 78. The provision has long since dropped out of the statute book.
  4.  Jump to essay-4Runkle v. United States, 122 U.S. 543 (1887).
  5.  Jump to essay-5Cf. In re Chapman, 166 U.S. 661, 670–671 (1897), where it was held that presumptions in favor of official action preclude collateral attack on the sentences of courts-martial. See also United States v. Fletcher, 148 U.S. 84, 88–89 (1893); Bishop v. United States, 197 U.S. 334, 341–42 (1905), both of which in effect repudiate Runkle.
  6.  Jump to essay-6The President, in the exercise of his executive power under the Constitution, speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. The heads of the departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 513 (1839). See also United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842); Williams v. United States, 42 U.S. (1 How.) 290, 297 (1843); United States v. Jones, 59 U.S. (18 How.) 92, 95 (1856); The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879); Wolsey v. Chapman, 101 U.S. 755 (1880).
  7.  Jump to essay-742 U.S. (1 How.) 290 (1843).
  8.  Jump to essay-83 Stat. 723 (1823), now covered in 31 U.S.C. § 3324.
  9.  Jump to essay-942 U.S. (1 How.) at 297–98.
  10.  Jump to essay-1038 Ops. Atty. Gen. 457, 458 (1936). And, of course, if the President exercises his duty through subordinates, he must appoint them or appoint the officers who appoint them, Buckley v. Valeo, 424 U.S. 1, 109–143 (1976), and he must have the power to discharge those officers in the Executive Branch, Myers v. United States, 272 U.S. 52 (1926), although the Court has now greatly qualified Myers to permit congressional limits on the removal of some officers. Morrison v. Olson, 487 U.S. 654 (1988).
  11.  Jump to essay-111 Annals of Cong. 495, 499 (1789).
  12.  Jump to essay-12Id. at 611–612.
  13.  Jump to essay-135 U.S. (1 Cr.) 137 (1803).
  14.  Jump to essay-145 U.S. (1 Cr.) at 165–66.
  15.  Jump to essay-151 Ops. Atty. Gen. 624 (1823).
  16.  Jump to essay-163 J. Richardson, supra at 1288.
  17.  Jump to essay-17Id. at 1304.
  18.  Jump to essay-1837 U.S. (12 Pet.) 524 (1838).
  19.  Jump to essay-1937 U.S. (12 Pet.) at 610.
  20.  Jump to essay-20Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654 (1988).
  21.  Jump to essay-21Morrison v. Olson, 487 U.S. at 689–90.
  22.  Jump to essay-22487 U.S. at 690–91.
  23.  Jump to essay-23487 U.S. at 691.
  24.  Jump to essay-24487 U.S. at 691–92.
  25.  Jump to essay-25B. Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 231–32 (1903).
  26.  Jump to essay-26United States v. Eliason, 41 U.S. (16 Pet.) 291, 301–02 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–81 (1886). For an analysis of the approach to determining the validity of presidential, or other executive, regulations and orders under purported congressional delegations or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301–16 (1979).
  27.  Jump to essay-27In re Neagle, 135 U.S. 1 (1890).
  28.  Jump to essay-28135 U.S. at 64. The phrase, a law of the United States, came from the Act of March 2, 1833 (4 Stat. 632). However, in the Act of June 25, 1948, 62 Stat. 965, 28 U.S.C. § 2241(c)(2), the phrase is replaced by the term, an act of Congress, thereby eliminating the basis of the holding in Neagle.
  29.  Jump to essay-29236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).
  30.  Jump to essay-3030 Ops. Atty. Gen. 291 (1914).