All is forgiven if you’re not familiar with the “take care” clause in Article II of the Constitution about the presidency, the words that say “he shall take Care that the laws be faithfully executed.” The Supreme Court hasn’t fooled with it in many years. The words are buried below the State of the Union clause, and the business of receiving “Ambassadors and other public Ministers.” They lack resonance; they sound polite.
But their meaning, traced back through hundreds of years of history and translated into today’s colloquial English is indeed a command: They mean “Mr. President, don’t act like a king” — administer the law, but don’t dispense with it or change it.
Is the president acting like a king? It’s one of those questions ordinary people have asked in recent years, but not the Supreme Court. That’s why it’s a been a bit of an abstraction, until last week, when suddenly the justices, or some of them at least, took an interest.
When the court decided to review a lower court order temporarily blocking President Obama’s 2014 decision to defer deportations of “dreamers,” an action he took in the wake of Congress’s failure to pass the “DREAM Act,” the court surprised everyone by dusting off the clause and asking for arguments about whether, in doing so, the president had “faithfully” executed the nation’s immigration laws.
That the justices would review the case, decided on less lofty grounds in the lower courts, was expected. The question about the “take care” clause was not.
One law professor called it a “bombshell.”
To be clear, administration lawyers regard the Constitutional question as absurd. The president followed the law, they say. He didn’t change it.
But Texas and 25 other states believe they have a smoking gun: after announcing the immigration “guidance” on dreamers, Obama came out and said: “I just took an action to change the law.”
The fact that the court asked the question does not mean it will answer it. It’s long shot. If it does answer it, and if it answers it broadly, the decision could alter the presidency in ways neither Obama nor his successors will like.
Either way, it’s fair to ask, what is it? Here’s a primer.
Unlike presidents, English monarchs, as legal scholar Zachary S. Price wrote in the Vanderbilt Law Review, enjoyed the right to change laws, “to suspend (either permanently or temporarily) the operation of existing statutes, or grant dispensations” for particular individuals. If the king or queen wanted to let someone import French wine despite a legal prohibition, they just did it — sometimes in exchange for cash. If they wanted to let someone celebrate religion without regard to the rites of the Church of England, they just did it. Sometimes they’d even let someone get away with murder, the law notwithstanding.
“The power to dispense,” wrote historian Carolyn A. Edie, gave the royals a “license to act as if the law dispensed with did not exist.”
King James II went a little too far in 1686, dispensing with a religious test “to bring Catholics into the church, the army and the government,” Edie wrote, “a policy calculated by everyone except James himself to arouse fear and hostility in his subjects’ hearts.”
It did just that. Soon he was fleeing the country, replaced by William of Orange and his wife Mary, and the Glorious Revolution. The royal dispensing power disappeared.
And it became part of English common law that the “principal duty of the King is, to govern his people according to law.” All this was familiar stuff to the drafters of the Constitution, particularly the lawyers among them. It wasn’t a crown that made a monarch; it was power, the power to dispense with the laws of Parliament.
The delegates who gathered in Philadelphia in 1787 to consider a new form of government started out with few firm ideas of what exactly they wanted to do. But they knew what they did not want to do: create anything resembling a monarchy.
They worried so much about public perception on the monarchy issue that they broke their silence one day during their convention to deal with a rumor that deeply alarmed them. The story appeared in August of 1787, that they were preparing to create a monarchy and install a monarch, specifically Frederick, Duke of York and Albany, the second son of George III, apparently a man in need of a job. Panicky at the suggestion that after having thrown off the shackles of a monarchy, they were about to create one, they put out their first and only communique: “Tho we cannot affirmatively tell you what we are doing,” it said, “we can, negatively, tell you what we are not doing — we never once thought of a king.”
Indeed, they were taking steps to do just the opposite, creating an elected presidency with a set term, separating the powers, and defining, albeit with little detail, the power of the office and the limits on its power.
They were not starting entirely from scratch. New York’s constitution, among others, included the language, applied to the governor, that he shall take care to faithfully execute the laws.
It was a grant of “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws,” one of the chief architects of the presidency, James Wilson, would write later.
What of the word “faithfully?” That’s tough because it entails motive, which entails a little mind-reading. The “term ‘faithfully,’ particularly in eighteenth-century usage, seems principally to suggest that the President must ensure execution of existing laws in good faith,” wrote Price, “a meaning consistent with the Clause’s core purpose of ensuring congressional supremacy. Yet the word also implies that executing laws ‘faithfully’ could be different from executing them strictly.”
Randy Barnett, a scholar at Georgetown University who helped lead the challenge to Obama’s Affordable Care Act and who teaches contracts law, puts it in the context of a contract. “What distinguishes good faith from bad faith performance of a contract is not the exercise of discretion but is the motive or purpose for which discretion is exercised,” he wrote. If discretion is being exercised as a pretext to avoid the spirit of the contract, that’s bad faith.
Everyone, including the courts, agrees that the “take care” clause gives some flexibility to the president, a kind of prosecutorial discretion. Presidents “don’t have to enforce the law in every particular case,” Price, an expert on the clause at the University of California’s Hastings Law School, said in an interview with The Post. There are limits to the government’s resources. And the laws are often vague, or have gaping holes. “The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration,” wrote Justice Antonin Scalia in a 2014 environmental case. “But it does not include a power to revise clear statutory terms that turn out not to work in practice.”
But how does all this fit in with the immigration case? And why might Obama be at least theoretically vulnerable to a charge that he acted in bad faith, as opposed to, for example, simply exercising prosecutorial discretion, as the government’s lawyers argued.
As Texas and its allied states argued in the lower court, Obama had tried for months to get Congress to enact the “DREAM Act.”
Failing that, in June 2012, a frustrated president announced that he was moving ahead on his own.
“I have said time and time and time again to Congress that, send me the DREAM Act, put it on my desk, and I will sign it right away …. In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places” and “the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”
In November 2012, the administration then proceeded to implement initiatives that would offer three years of deportation relief to as many as 4 million undocumented parents of U.S.-born children as well as to another group of younger illegal immigrants. Administration lawyers called it “guidance” — picking and choosing and prioritizing deportations.
The states challenging Obama used Obama’s own words as evidence that this exercise in discretion was, in fact, an end run around Congress, a pretext for dispensing with the immigration laws already on the books, which the “DREAM Act” would have changed. Obama as much as admitted it, they claimed.
On the one hand, he said repeatedly that he lacked the power to do anything in the absence of a change in law, and then, when the law didn’t change, he went ahead and did it anyway.
For example, in a Univision Town Hall in March 2011 he was asked this:
In the spirit of your push for immigration reform, would you consider a moratorium on deportations of non-criminals? Remember, these are your words: “This is not about policy. It’s about people.?”
To which he replied:
Well, I think it is important to remind everybody that, as I said I think previously, and I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.
After Obama announced the deferrals, The Washington Post’s Fact Checker Glenn Kessler called it a “royal flip-flop on using executive action on illegal immigration.”
Perhaps even more damaging, and also cited by Texas, was Obama’s response to hecklers, after he announced his immigration policies in the wake of the Dream Act’s failure, who accused him of not doing enough.
“Listen, you know — here. Can I just say this, all right? I’ve listened to you. I heard you. I heard you. I heard you. All right? Now I have been respectful, I let you holler. All right? So let me just — nobody is removing you. I have heard you, but you have got to listen to me, too. All right? And I understand you may disagree, I understand you may disagree. But we have got to be able to talk honestly about these issues, all right?
“Now, you’re absolutely right that there have been significant numbers of deportations. That’s true. But what you are not paying attention to is the fact that I just took an action to change the law. Point No. 2, the way the change in the law works is that we’re reprioritizing how we enforce our immigration laws generally.” (Italics added)
In the view of Texas and others, Obama admitted both that he had no power under the law and that he thus, in his words, “changed the law” while pretending that he wasn’t. Bad faith.
“There generally wouldn’t be any evidence of bad faith,” Georgetown University Law Professor Randy Barnett, who formulated the winning Commerce Clause argument in the Supreme Court challenge to the Affordable Care Act, said in an interview. “But here we have public declarations [from Obama] that ‘I don’t have the authority, I don’t have the authority, I don’t have the authority’ and that ‘Congress won’t act, Congress won’t act, Congress won’t act’ and then you also have the enactment of what looks like legal rules, not just discretion, but whole classes of people who are exempt from the law, the very same law the president was urging Congress to pass….it suggests that he’s not acting in good faith.”
In their response to the lawsuit, Department of Justice lawyers dismissed the “take care” claim as “radical,” one that would yield “absurd” results of the government having to deport every single illegal in the country. In order to make a case, they argued, the challengers would at the very least have to show that the administration “has acted inconsistently with the statutes Congress has enacted,” which they can’t, because it didn’t.
Even then, the issue is statutory, not constitutional. “The [Homeland Security] Secretary’s discretion to grant deferred action draws upon the Secretary’s broader discretion in enforcing the Nation’s immigration laws …. Congress has authorized the Secretary to ‘establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority’ under the statute” and “that is all the administration did.”
How that squares with Obama’s original statements that he needed the DREAM Act to do what he ultimately did, may be a question for the likes of Justice Scalia at oral argument.
When the U.S. District Judge Andrew S. Hanen in Brownsville, Tex., issued an order blocking the policies, he did not reach the question raised by Texas on the “take care” clause. He based his decision to issue a temporary order on the likelihood that the administration breached the rules set out by the Administrative Procedure Act. Nor did the 5th Circuit Court of Appeals deal with the take care clause, as it’s a principle of constitutional adjudication that if a case can be resolved on statutory grounds, any constitutional issue should be avoided.
Then, suddenly last week, the Supreme Court agreed to hear the case and in the fine print of its order, said it also wanted to know whether the immigration guidance “violates the Take Care Clause of the Constitution, Article II, section 3.”
No one knows how many justices agreed to add that question. And nobody knows whether, in the end, the court will try to answer it and if so, what the answer will be. With so many ways to avoid it, including the great case killer called “standing”— the states must show they are legally entitled to sue — it’s a long shot.
But for the first time in memory, that question — is the president acting like a king, asked so often in politics of Republican and Democratic administrations, may wind up squarely before the Supreme Court.