In the process of granting review of the decision, by the U.S. Court of Appeals for the 5th Circuit, invalidating the Obama administration’s immigration guidance granting de facto (albeit revocable) legal status to hundreds of thousands of undocumented residents of the United States, the Supreme Court unleashed a bombshell. Without any explicit request from the parties, the court added the following question for review: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

This is a stunning development. The clause states that “[The President] shall take Care that the Laws be faithfully executed.” This is the first time, to my knowledge, that the Supreme Court, maybe any court, has suggested that the Take Care Clause is justiciable (i.e., that the president’s (in)actions are subject to judicial review under the clause). I’m not sure that any Supreme Court litigant has ever even seriously pursued an argument under the clause.

While opponents of judicial activism might be horrified by this turn of events, we should consider why the court seems to have volunteered to involve itself in what has traditionally been seen as a “political question” not subject to judicial intervention. (Caveat: No one — not even Supreme Court experts — seems to know how many votes it takes to add an issue to cert. grant, or, assuming it takes four or five, whether the justices typically defer to their colleagues if one or more of them feel strongly about adding an issue. So we don’t know how many justices really wanted to decide the Take Care Clause issue.)

Basically, traditional constraints on executive lawlessness have diminished. Consider Congress’s strongest weapon in defending it prerogatives, the power of the purse. Congress’s budget process seems broken beyond at least immediate repair, with the result that it presents one massive, take-it-or-leave-it spending bill to the president each year that covers most spending. This is hardly conducive to discrete exercises of congressional power. Meanwhile, presidents have increasingly found ways to spend money “off-budget” by moving money around accounts in legally questionable ways, with generally no one having standing to sue to stop them. Finally, the public doesn’t seem to understand that under our constitutional system, if Congress passes a bill and the president vetoes it, it’s the president, not Congress, who has “shut down” whatever hasn’t been funded. These factors have combined to severely weaken the power of the purse.

Congress’s ultimate check on presidential abuses, the power to remove the president through impeachment and conviction, is virtually toothless because it requires a majority vote of the House of Representatives to impeach, and two-thirds of the Senate to convict. Absent Nixon-level lawbreaking, in practice this means impeachment is a serious threat only when the president is of one party and the House and Senate are controlled by the other, with two-thirds majority in the latter. That has occurred only one time in American history, 150 years ago — and it led to the impeachment and near-conviction of President Andrew Johnson.

Indeed, with Congress increasingly ideological and partisan, there are very few, if any, politicos who still seek to defend the prerogatives of Congress, as such, against the president, regardless of political party dynamics. The last three Democrats who did so with some regularity were (especially) Robert Byrd (W.Va.), Russ Feingold (Wis.) and Herb Kohl (Wis.), and they are all gone. Instead, in 2013 we had all the Democrats giving a standing ovation to President Obama when he promised to go around Congress. There is no reason to expect anything different from Republicans next time there is a GOP president.

Finally, presidents, especially this president, seem to be exercising less self-restraint. The president’s defenders will argue that he has no choice because Congress is partisan, obstructionist and dysfunctional. In the specific context of immigration, they will point out that there was probably a majority in the House and Senate for immigration reform but then-House Speaker John Boehner (R-Ohio) refused to allow it to come to a vote. The problem is that I haven’t seen anyone come up with anything remotely resembling a coherent constitutional theory as to why the president’s power expands when Congress refuses to act, given the Constitution vests all legislative power in Congress. [To be clear, I don’t have a strong opinion on whether the president’s immigration policies are within his discretion, I think it’s a close call.  I have opined that to make such a drastic move unilaterally is contrary to American constitutional norms. Worse yet, Obama did so after publicly proclaiming that he lacked the power to do so. But if SCOTUS is going to reject the president’s action, it will surely be because based on their legality, not whether the president has engaged in suboptimal behavior.]

I don’t know which, if any, of these points is appreciated by the justices who added the question about the Take Care Clause. But it seems that at least some justices appreciate that the separation of powers is endangered by the growth of unilateral executive action, and want to consider whether the court should take a more active role in policing the boundaries between the president’s powers and Congress’s. As someone who has publicly called on the court to make it easier to sue the executive branch for exceeding its constitutional authority, I welcome this consideration.

UPDATE: The most analogous case that comes to mind is Train v. City of New York (1975), in which the Supreme Court held that the president had neither the statutory nor inherent authority to refuse to spend money that Congress had allocated. The Court, however, doesn’t mention the Take Care Clause in its ruling. Checking the briefs on Westlaw, two amici mention the Take Care Clause. One, the Attorney General of California, briefly argues that the president can’t rely on the clause to not spend money in order to preserve the nation’s fiscal integrity. The other, the State of Michigan, made the following argument:


“[The President] shall take Care that the Laws be faithfully executed …”

… US Constitution, Art II, Section 3.

The executive branch has no choice but to abide appropriations statutes. Before he may enter service of his office, the President must take the following Oath: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” US Const. Art II. Sec. I. Included among the duties of the President is the duty to faithfully execute the laws of the land. US Const, Art II, Sec. 3.

Indeed, our history is predicated on the fact that we are a nation of laws. This is not to say that the executive branch is without authority or discretion. The executive has discretion, but that discretion must be exercised within the four corners of the Federal Water Pollution Control Act Amendments of 1972 which provides for a mandatory allotment of $11 billion in water pollution control funds.

Placing all of.the arguments and authorities acknowledged in this litigation in perspective, we submit that the faithful execution of the laws of our country should receive the highest of priorities.