Contributor, The Volokh Conspiracy

As I noted yesterday, the Supreme Court decided to add the following question to its review of the legality of President Obama’s immigration guidance: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” I added that “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).”

A correspondent pointed out that the Clause was discussed in the Steel Seizure Case. In that case the Truman administration argued unsuccessfully that the Clause gave the president extra power to do things not authorized by Congress, a presidential analogue to Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Co-blogger Ilya Somin, meanwhile, points out that Justice Antonin Scalia has relied on the Clause to argue that presidential exclusive authority to execute the laws can’t be undermined by independent counsels (Morrison v. Olson) or private attorney generals (Lujan v. Defenders of Wildlife). In other words, the Clause protects the president’s legitimate power from being eroded by Congress.

But what I was getting at is the justiciability of any limits the Take Care Clause may put on presidential authority — in other words, whether the Clause protects Congress from the president. It’s quite a contrast from Truman’s time that the Court is discussing the Clause as a potential limit on presidential authority rather than a potential grant of additional authority.

More on point, then, courtesy of UCLA Law Library Director Kevin Gerson, is Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2446 (2014),  in which Justice Scalia, writing for the five conservative justices, wrote:

Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, “faithfully execute[s]” them. U.S. Const., Art. II, § 3…. 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. But it does not include a power to revise clear statutory terms that turn out not to work in practice.

That’s a rather cursory discussion, and I don’t want to read too much into it. But it does provide some intriguing evidence that the conservative majority has had on its mind not just the statutory interpretation aspects of determining the scope of executive authority, but also how they relate to the president’s constitutional responsibilities under the Take Care Clause.