Preserving Faithful Execution: An Examination into the Original Meaning of the Take Care Clause and the Measures to Preserve It

• Author: Sophia Shams
• Pages: 805-824

Preserving Faithful Execution: An Examination into

the Original Meaning of the Take Care Clause and

the Measures to Preserve It

SOPHIA SHAMS*

ABSTRACT

The Constitution states that the President shall take care that the laws be

faithfully executed. While its precise meaning is unclear, the Take Care Clause

has been used to justify broad exercises of executive power. This paper exam-

ines the original meaning of the Take Care Clause and whether the Framers

intended the clause to provide such broad executive discretion. In determining

the original meaning of the Take Care Clause, this paper analyzes founding

documents such as notes and records from the Constitutional Convention, the

Federalist Papers, and state constitutions and court opinions. After determining

the original meaning of the Take Care Clause, this paper explores whether our

current system of government provides any meaningful checks to ensure fidelity

to this clause and what measures may be necessary to preserve such fidelity.

TABLE OF CONTENTS

I. INTRODUCTION................ ........................ 806

II. THE MEANING OF THE TAKE CARE CLAUSE .................. 807

A. The Meaning of “the Laws”.......................... 807

1. The Take Care Clause Includes Laws Passed by Congress 807

2. The Constitution Is Not Part of “the Laws”in the Take

Care Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808

B. The Meaning of “Shall Take Care”.................... 810

C. The Meaning of “Faithfully Executed”................. 811

1. The President Has Discretion, But Only to the Extent

Congress Prescribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812

2. Faithful Execution Does Not Include a Refusal to

Execute the Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813

3. Faithful Execution May Impose a Good Faith Standard or

a More Objective Standard . . . . . . . . . . . . . . . . . . . . . . . 815

*©2022, Sophia Shams.

805

III. THE POTENTIAL CHECKS ON EXECUTIVE POWER WITH RESPECT TO

THE TAKE CARE CLAUSE ................................ 818

A. The People As a Check. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819

B. The Legislature As a Check . . . . . . . . . . . . . . . . . . . . . . . . . . 819

C. The Judiciary As a Check. . . . . . . . . . . . . . . . . . . . . . . . . . . . 820

1. Good Faith (Subjective) Standard . . . . . . . . . . . . . . . . . . 821

2. Reasonable Man (Objective) Standard . . . . . . . . . . . . . . 822

3. The Case for an Objective Standard . . . . . . . . . . . . . . . . 822

IV. CONCLUSION ......................................... 823

I. INTRODUCTION

“[W]ith great power ...come[s] great responsibility.”

1

This is a cautionary prin-

ciple that is not only applicable to comic book characters, but also the President of

the United States. The Constitution bestows upon the President an immense amount

of discretion when it comes to his executive power. And while energy in the execu-

tive was certainly a goal of the Framers, there still must be some sort of accountabil-

ity to avoid the type of tyranny the Framers had formerly experienced. Referred to

at the North Carolina Ratification Convention as “one of the best provisions”of the

Constitution,

2

theTakeCareClausehas

3

may provide that security.

The Take Care Clause has been interpreted in a number of ways. Found in

Article II, the clause states that the President “shall take Care that the Laws be

faithfully executed.”

4

Since the founding, Presidents have relied upon the Take

Care Clause as support for their broad discretion in executing laws, or even their

refusal to execute laws deemed unconstitutional.

5

Our understanding of how

much deference the executive branch should have is still developing. But while

scholars continue to debate the meaning of the Take Care Clause and its implica-

tions for executive power, the clause itself was not of much controversy when the

Constitution was debated and ratified.

6

Consequently, very little documentation

1. See STAN LEE &STEVE DITKO,AMAZING FANTASY NO. 15: “SPIDER-MAN”11 (1962) (“[I]n this

world, with great power there must also come—great responsibility.”).

2. North Carolina Ratification Convention Debates (July 28, 1788) (statement of Rep. Maclaine), https://

consource.org/document/north-carolina-ratific ation-convention-debates-1788-7-28/2013012208033 7/ [https://

perma.cc/FJ3G-D38G].

3. U.S. CONST. art. II, § 3.

4. Id.

5. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Myers v. United

States, 272 U.S. 52 (1926).

6. See Records of the Federal Convention of 1787, in 4T

HE FOUNDER’SCONSTITUTION, art. 2, § 3,

document 5 (Max Farrand ed., Yale Univ. Press 1937), https://press-pubs.uchicago.edu/founders/

documents/a2_3s5.html [https://perma.cc/P683-UY3L].

806 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:805