The Take Care Clause

. . . [the President] shall take Care that the Laws be faithfully executed . . . .

—John C. Yoo

Introduction

The Article II Vesting Clause grants “the executive power” to the President. The Take Care Clause qualifies that power: The President must wield his executive power over law execution to “take Care that the Laws be faithfully executed.” The President must use the constitutional and statutory resources at his disposal to see that Congress’s laws are executed faithfully. Further, the President must execute the law without violating other federal laws, and the President cannot order his subordinates to do so. Finally, the Executive should not deliberately misread or twist statutes, which would be unfaithful execution.¹ The Supreme Court has addressed the Take Care Clause in a wide array of separation of powers cases but “almost never construes the clause, at least not in any conventional way.”²

History Before 1787

The Take Care Clause can be traced back as far as Magna Carta.³ Chapter 61 provided that the barons “shall faithfully observe” that King John would observe his obligations under the Great Charter.⁴ Sir William Blackstone observed that the king had “the whole executive power of the laws” but had a duty to execute those laws “in subservience to the law of the land” for “the care and protection of the community.”⁵ The king lacked the power not to execute, or to suspend, the law. The English Bill of Rights of 1689 repudiated “the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament.”⁶

This duty of faithful execution continued in the colonies. William Penn’s Charter of Liberties for Pennsylvania provided that the governor “shall take Care, that all Laws Statutes and Ordinances which shall at any time be made within the said Province be duly and diligently executed.”⁷ Scholars have observed that “faithful execution was often tied to staying within authority and abiding by the law, following the intent of the lawgiver, and eschewing self-dealing and financial corruption.”⁸

This understanding continued in the states following independence. Most of the new states required “that the chief magistrate govern according to law and take an oath of faithful execution of office.”⁹ The Virginia Declaration of Rights found that “all power of suspending laws, or the execution of laws . . . is injurious to [the people’s] rights and ought not to be exercised.”¹⁰ In Pennsylvania, all government officials were required to swear or affirm “that I will faithfully execute the office . . . and will do equal right and justice to all men, to the best of my judgment and abilities, according to law.”¹¹ In New York, the governor had the duty “to take care that the laws are faithfully executed to the best of his ability.”¹²

These state executives understood that they had the power to execute the laws and a duty to ensure faithful execution. The Confederation Congress imposed similar oaths. For example, Secretary of Foreign Affairs John Jay took an oath “for the faithful execution” of his trust.¹³

The Constitutional Convention

During the Constitutional Convention, the Framers debated two provisions on faithful execution. The first, the Presidential Oath of Office Clause, provided that the President would “faithfully execute the Office of President of the United States.”¹⁴ (See Essay No. 101.) The second would become the Take Care Clause.

Edmund Randolph’s Virginia Plan would have granted the President the “power to carry into execution the national laws,”¹⁵ but the concept of faithful execution would be introduced by the Committee of Detail. Two members of that committee drafted different formulations.¹⁶ James Wilson of Pennsylvania proposed that the President “shall take Care to the best of his Ability, that the Laws of the United States be faithfully executed.” Wilson appears to have modeled this text after the Pennsylvania Constitution. John Rutledge of South Carolina proposed: “It shall be his duty to provide for the due & faithful exec — of the Laws to the best of his ability.” The Committee’s report, which was delivered to the Convention on August 6, largely followed Wilson’s phrasing: “he shall take care that the laws of the United States be duly and faithfully executed.”¹⁷ The words “to the best of his Ability,” were removed.

The Convention approved this text, and it was referred to the Committee of Style.¹⁸ However, the Committee shortened it: “he shall take care that the laws be faithfully executed.”¹⁹ The Committee dropped “duly and faithfully” and “of the United States.” The Convention adopted this revised provision without further debate.

The Ratification Debates

During the ratification debates, there was little consideration of the Take Care Clause. In Federalist No. 69, Alexander Hamilton wrote that the President’s “power . . . to take care that the laws be faithfully executed” would “resemble equally that of the king of Great Britain and of the governor of New York.” In Federalist No. 77, Hamilton explained that “no objection has been made” to the “power[] of . . . faithfully executing the law.”

During the Pennsylvania ratification convention, James Wilson referred to the Take Care Clause as “another power of no small magnitude intrusted to this officer.”²⁰ These Framers seemed to view the Take Care Clause as a duty as well as a power. In the North Carolina ratification convention, Archibald Maclaine praised the Take Care Clause as “[o]ne of the best provisions contained in” the Constitution. If the President “takes care that the laws be faithfully executed,” Maclaine said, “it will be more than is done in any government on the continent.”²¹

Yet much about this provision was uncertain. William Symmes, an Anti-Federalist from Massachusetts, wrote that the Take Care Clause was “so brief, so general.”²² He asked a series of questions: “Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution? . . . And should the legislature direct the mode of executing the laws, or any particular law, is [the President] obliged to comply, if he does not think it will amount to a faithful execution?”²³ The Federalists gave no clear answers.

Early Practice

The First Congress established several great departments in the executive branch, including Foreign Affairs, War, and Treasury, and placed a Secretary at the head of each department. Who would ensure that these departments executed federal law: the secretaries or the President? Congress assumed that the Executive would be responsible for law execution, as each secretary was subordinate to the President. The Take Care Clause obligates the President to ensure that those below him faithfully execute the law. Professor Robert Natelson explains that at the Framing, “take care” was a term of art employed in “power-conferring documents” in which officials assigned tasks to agents.²⁴ Over time, the President would direct and supervise the executive branch, including the military, the diplomatic corps, and domestic officers like prosecutors and tax collectors.

President George Washington, for example, directed both federal and state officers in their execution of federal law. In the midst of the Whiskey Rebellion, Washington observed that “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty.²⁵ Consistent with the notion that he had both power and duty, Washington repeatedly instructed officers.²⁶ He gave enforcement orders to state governors, prosecutors, revenue officers, and the departmental secretaries. Washington wrote that “[i]n light of ‘[t]he impossibility that one man should be able to perform all the great business of the State,’ the Constitution provides for executive officers to ‘assist the supreme Magistrate in discharging the duties of his trust.’”²⁷ During the Civil War, President Abraham Lincoln invoked the clause as one of the grounds for his duty to suppress the rebellion.²⁸

Early Judicial Precedent

The U.S. Supreme Court has discussed the Take Care Clause in a wide range of cases. In Little v. Barreme (1804), Chief Justice John Marshall observed that the president’s “high duty . . . is to ‘take care that the laws be faithfully executed.’”²⁹ In that case, Congress “seem[ed] to have prescribed . . . the manner in which this law shall be carried into execution . . . .”³⁰ United States v. Tingey (1831) found that the President is “enjoined” with the “trust” of faithful execution.³¹ The President “not only may, but he is bound to avail himself of every appropriate means not forbidden by law.”³² Accordingly, the Court concluded that the President could demand bonds from federal officers to ensure their faithful handling of federal funds.

The Court’s most authoritative decision concerning the Take Care Clause came in Kendall v. United States ex rel. Stokes (1838).³³ Chief Justice Roger B. Taney’s majority opinion held that the Postmaster General must comply with positive congressional edicts lest the duty to take care that the laws be faithfully executed become a “dispensing power” to suspend the law.³⁴ Taney added that “[t]o contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution.”³⁵ The Court later referred to these principles as “fundamental and essential” and said that without them, “the administration of the government would be impracticable.”³⁶

Chief Justice Taney invoked the clause again in Ex parte Merryman (1861).³⁷ During the Civil War, President Lincoln unilaterally suspended the writ of habeas corpus. John Merryman, who was imprisoned in Fort McHenry in Baltimore, challenged his detention. Taney found that only Congress had the power to suspend the writ. Regarding the Take Care Clause, Taney wrote that the President is “not authorized to execute [the laws] himself . . . but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.”³⁸ The President “certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus.”³⁹

Taney did not issue any sort of order against Lincoln—or anyone else for that matter—to release Merryman,⁴⁰ but he did instruct the clerk to transmit his opinion to the President. Taney stated, “It will then remain for that high officer, in fulfilment of his constitutional obligation to ‘take care that the laws be faithfully executed,’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”⁴¹

Modern Judicial Precedent

The Supreme Court has relied upon the Take Care Clause as the basis for the President’s power to remove subordinates. In Myers v. United States (1926), Chief Justice William Howard Taft concluded that “as part of his executive power” to “take care that [the laws] be faithfully executed,” the President “should select those who were to act for him under his direction in the execution of the laws.”⁴² This power, Taft found, implies that the President has the “power of removing those for whom he cannot continue to be responsible.”⁴³ As a result, congressional restrictions on the President’s removal power were unconstitutional.

In dissent, Justice Louis Brandeis wrote that the removal power could not be “spelled out of the direction” in the Take Care Clause.⁴⁴ Justice Oliver Wendell Holmes similarly concluded that “[t]he duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.”⁴⁵ But the Roberts Court followed Taft’s view in removal decisions: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.”⁴⁶

The Court has also relied upon the Take Care Clause to support the principle that the President cannot make laws, but can only enforce them. In Youngstown Sheet & Tube Co. v. Sawyer (1952), several justices cited the duty of faithful execution to find that the President could not seize American steel mills during the Korean War.⁴⁷ Justice Hugo Black’s majority opinion stated that “[i]n the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Congress makes the laws and the President enforces them. Justice Robert Jackson’s influential concurrence observed that the Take Care Clause signifies the “principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.”⁴⁸ The Take Care Clause “allows the President to execute the laws, not make them.”⁴⁹

The Supreme Court has cited the Take Care Clause as the basis for prosecutorial discretion.⁵⁰ The clause also supports modern standing doctrine.⁵¹ Unlike the executive, the judiciary lacks a roving commission to ensure faithful execution of the laws. But courts have yet to answer whether the Take Care Clause prohibits Presidents from using prosecutorial discretion to reduce the enforcement of a federal law to zero. President Barack Obama, for example, imposed two controversial immigration programs, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), that granted lawful presence to large classes of illegal aliens. Texas and other parties challenged these policies as a violation of the President’s duty of faithful execution.⁵² The plaintiffs claimed that DACA and DAPA amounted to unconstitutional suspensions of the law. The lower courts found that DAPA and DACA violated statutory law and so did not decide the constitutional question.⁵³ The Supreme Court also did not reach this issue.⁵⁴

Open Questions

• What does “faithful” execution require?⁵⁵ Does it imply a duty of good faith,⁵⁶ or does it create some sort of fiduciary interest?⁵⁷
• When does the President actually violate the Take Care Clause? Did President Lincoln violate the clause by suspending the writ of habeas corpus or by refusing to order the release of John Merryman?⁵⁸
• Does the Take Care Clause provide a basis for the President’s ability to impound, or decline to spend, appropriated funds?⁵⁹ Or does the clause restrict the ability of the President to impound funds?⁶⁰
• Presidents have declined to enforce laws that they have determined are unconstitutional. Does the Take Care Clause prohibit the President from even determining whether a statute is unconstitutional?⁶¹ Is the President’s role limited to determining whether to sign or veto the bill? Does the Take Care Clause support the President’s issuance of signing statements, which explain why part of a law may be unconstitutional?⁶² Or is the President barred from executing a law he determines is unconstitutional because doing so would violate the Take Care Clause and the Presidential Oath of Office?⁶³
• Does the Take Care Clause provide a basis for presidential criminal immunity,⁶⁴ or does it reject the basis for such immunity?⁶⁵

1. Saikrishna Bangalore Prakash, Imperial from the Beginning: The Constitution of the Original Executive 84–99 (2015). ↩︎
2. Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1853 (2016). ↩︎
3. Andrew Kent, Ethan J. Leib, & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2142 (2019). ↩︎
4. Id. at 2142. ↩︎
5. 1 Blackstone 267. ↩︎
6. The Bill of Rights, 1 W. & M., c. 2 (1689). ↩︎
7. Penn’s Charter of Libertie (Apr. 5, 1682), https://perma.cc/C4M3-HJV4. ↩︎
8. Kent et al., supra at 2169. ↩︎
9. Id. at 2173. ↩︎
10. Va. Decl. of Rts. of 1776, § 7. ↩︎
11. Pa. Const. of 1776, § 40, https://perma.cc/BF3N-GZRZ. ↩︎
12. N.Y. Const. of 1777, § XIX, https://perma.cc/6F8G-TWV8. ↩︎
13. 19 J. Cont. Cong. 44 (Jan. 10, 1781). ↩︎
14. Art. II, § 1, cl. 8. ↩︎
15. 1 Farrand’s 63, 226, 230, 236. ↩︎
16. 2 Farrand’s 171. ↩︎
17. Id. at 185. ↩︎
18. Id. at 574. ↩︎
19. Id. at 600, 660. ↩︎
20. 2 Elliot’s 513. ↩︎
21. 4 Elliot’s 136. ↩︎
22. Storing 4.5.2. ↩︎
23. Id. ↩︎
24. Robert G. Natelson, The Original Meaning of the Constitution’s “Executive Vesting Clause,” 31 Whitt. L. Rev. 1, 14 & n.59 (2009). ↩︎
25. Letter from George Washington to Alexander Hamilton (Sept. 7, 1792), https://perma.cc/8CC5-JDL2. ↩︎
26. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 641 (1994). ↩︎
27. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 483 (2010) (quoting 30 Writings of George Washington 334 (J. Fitzpatrick ed., 1939)). ↩︎
28. Address to Congress (July 4, 1861), in 2 Abraham Lincoln: Speeches and Writings 252 (1989). ↩︎
29. 6 U.S. (2 Cranch) 170 (1804). ↩︎
30. Id. at 177–78. ↩︎
31. 30 U.S. 115, 122 (1831). ↩︎
32. Id. ↩︎
33. 37 U.S. (12 Pet.) 524 (1838). ↩︎
34. Id. at 608. ↩︎
35. Id. at 613. ↩︎
36. U.S. ex rel. Goodrich v. Guthrie, 58 U.S. 284, 304 (1854); United States v. Midwest Oil Co., 236 U.S. 459, 505 (1915). ↩︎
37. Ex parte Merryman, 17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., Md., in chambers). ↩︎
38. Id. at 149. ↩︎
39. Id. ↩︎
40. Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 511–13 (2016); John Yoo, Merryman, Milligan, and McCardle, 12 Chapman L. Rev. 505 (2009). ↩︎
41. Merryman, 17 F. Cas. at 153. ↩︎
42. Myers v. United States, 272 U.S. 52, 117 (1926). ↩︎
43. Id. ↩︎
44. Id. at 246 (Brandeis, J., dissenting). ↩︎
45. Id. at 295 (Holmes, J., dissenting). ↩︎
46. Free Enter. Fund, 561 U.S. at 484; Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 214 (2020). ↩︎
47. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). ↩︎
48. Id. at 646 (Jackson, J., concurring). ↩︎
49. Medellin v. Texas, 552 U.S. 491, 532 (2008). ↩︎
50. United States v. Armstrong, 517 U.S. 456, 464 (1996); Heckler v. Chaney, 470 U.S. 821 (1985). ↩︎
51. Allen v. Wright, 468 U.S. 737, 761 (1984). ↩︎
52. Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 820 (2013); Josh Blackman, The Constitutionality of DAPA Part II: Faithfully Executing the Law, 19 Tex. Rev. L. & Pol. 215, 216 (2015). ↩︎
53. Texas v. United States, 809 F.3d 134, 146 n.3 (5th Cir. 2015); Texas v. United States, 328 F. Supp. 3d 662, 712 (S.D. Tex. 2018). ↩︎
54. United States v. Texas, 579 U.S. 547 (2016). ↩︎
55. Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014). ↩︎
56. Blackman, supra at 230. ↩︎
57. Kent et al., supra. ↩︎
58. John Yoo, Lincoln and Habeas: Of Merryman and Milligan and McCardle, 12 Chap. L. Rev. 505, 513 (2009); Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1 (2019). ↩︎
59. Impounding Appropriated Funds, Constitution Annotated, https://perma.cc/PK48-H3SZ. ↩︎
60. Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 439 (2018). ↩︎
61. Christopher N. May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative (1998). ↩︎
62. Nelson Lund, Presidential Signing Statements in Perspective, 16 Wm. & Mary Bill Rts. J. 95 (2007). ↩︎
63. Saikrishna B. Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008). ↩︎
64. Trump v. United States, 603 U.S. 593, 626–27 (2024). ↩︎
65. Id. at 673 (Sotomayor, J., dissenting); id. at 698 (Jackson, J., dissenting). ↩︎