ArtII.S3.3.1 Powers Derived from the Take Care Duty

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, who are commonly, but not always with strict accuracy, termed his subordinates. 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

Footnotes

  1.  In 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.  7 Ops. Atty. Gen. 453, 464-65 (1855).
  3.  Cf. 2 Stat. 78. The provision has long since dropped out of the statute book.
  4.  Runkle v. United States, 122 U.S. 543 (1887).
  5.  Cf. 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.  The 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.  42 U.S. (1 How.) 290 (1843).
  8.  3 Stat. 723 (1823), now covered in 31 U.S.C. § 3324.
  9.  42 U.S. (1 How.) at 297-98.
  10.  38 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).