INTRODUCTION I. THE TAKE CARE CLAUSE A. The Take Care Clause's History B. The Take Care Clause's Text C. Judicial Interpretations of the Take Care Clause II. RATIONALES FOR NONENFORCEMENT: UNCONSTITUTIONAL STATUTES AND PROSECUTORIAL DISCRETION A. Nonenforcement of Unconstitutional Statutes B. Nonenforcement Based on Prosecutorial Discretion III. NONENFORCEMENT UNDER PREVIOUS PRESIDENTIAL ADMINISTRATIONS A. Abraham Lincoln's Suspension of Habeas Corpus B. Andrew Johnson's Constitutional Objections to the Removal Restrictions in the Tenure of Office Act C. Franklin Roosevelt's Constitutional Objections to Legislative Veto Provisions and Removal Restrictions D. Harry Truman's Seizure of the Steel Mills E. Richard Nixon's Appropriations Impoundment F. Ronald Reagan and the Iran-Contra Affair 1. Arms Sales to Iran 2. Funding the Nicaraguan Contras G. George W. Bush's Signing Statements H. George W. Bush's Memorandum Directing Texas to Obey the International Court of Justice I. Presidents Not Complying with the War Powers Resolution IV. THE OBAMA ADMINISTRATION'S UNPRECEDENTED NONENFORCEMENT OF FEDERAL LAW A. Obamacare B. Immigration C. Drugs D. Welfare V. CONCLUSION INTRODUCTION
Upon taking office, the Constitution requires the President to take a simple, yet powerful, oath: "I do solemnly swear (or affirm) 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." (1) Inherent in preserving, protecting, and defending the Constitution is the command in Article II, Section 3 that "[the President] shall take Care that the Laws be faithfully executed." (2)
President Obama and his Administration have not taken care that the laws be faithfully executed. This Administration has embarked on an unprecedented pattern of lawlessness. And this is not just a Republican observation. As noted liberal Professor Jonathan Turley--who voted for President Obama--stated to Congress, "We are seeing the emergence of a different model of government in our country--a model long ago rejected by the Framers.... What we are witnessing today is one of the greatest challenges to our constitutional system in the history of this country." (3) In Professor Turley's words, "What's emerging is an imperial presidency, an uber-presidency ... where the President can act unilaterally." (4) The Constitution and federal statutes are supposed to be the supreme law of the land, (5) and the rule of law requires that the President enforce the laws duly enacted by Congress. In spite of this mandate, the Obama Administration has relegated the Constitution and federal statutes to advisory guidelines, allowing the executive to pick and choose which laws the President wants to enforce.
Some have argued that the Obama Administration's lawlessness is justified by prosecutorial discretion. (6) Others have posited that even if this Administration's actions have not been justified by prosecutorial discretion, this Administration is not disregarding the law any more than previous presidential administrations. This Article will show that both claims are patently false. In comparison to the most notable instances where previous presidential administrations have failed to enforce federal law, the Obama Administration has undertaken an unprecedented campaign to disregard federal law and undermine the separation of powers.
THE TAKE CARE CLAUSE
Article II, Section 3 of the Constitution states, "[the President] shall take Care that the Laws be faithfully executed." (7) The Take Care Clause, in short, requires the President to enforce the laws of the united States. As one scholar aptly explained, "The take care duty, the duty to enforce law faithfully, is, in many respects, the most basic responsibility the Constitution imposed upon the Chief Executive." (8) By obligating the President to enforce the laws enacted by Congress, the Constitution denies the President the power to operate as a monarch who picks and chooses which laws to enforce based on his personal or political preferences.
In the words of President Obama's former Administrator of the White House Office of Information and Regulatory Affairs, Professor Cass Sunstein, "The 'take Care' clause is a duty, not a license; it imposes an obligation on the President to enforce duly enacted laws." (9) Consequently, "the 'take Care' clause does not authorize the executive to fail to enforce those laws of which it disapproves." (10)
The Take Care Clause's History
English monarchs long claimed the unilateral power to suspend duly enacted laws. (11) This power included both the suspension power, which allowed the monarch to categorically suspend a statute's operation entirely, and the dispensation power, which allowed the king to issue individuals what amounted to a "license to transgress the law." (12)
These suspension and dispensation powers existed to let the king adapt to changing circumstances when he believed Parliament's objectives could not be achieved without ignoring the law. (13) The exercise of this power, therefore, was understood as a convenience to best accomplish the will of Parliament rather than an expediency for the king to circumvent the rule of law. Accordingly, the power pertained only to those laws that the king was directly in charge of enforcing. (14)
James II, however, used the dispensing power to accomplish his own policy objectives against Parliament's express will. (15) As a result, the power "gradually eroded" (16) until the English Bill of Rights declared that "the pretended Power of suspending of Laws, or the Execution of Laws, by regal Authority without Consent of Parliament, is illegal" and that "the pretended Power of dispensing with Laws, or the Execution of Laws by regal Authority, as it hath been assumed and exercised of late, is illegal." (17) Accordingly, "by 1789, no one familiar with history would have supposed that the English phrase 'executive Power,' as used for a century after the English Bill of Rights, encompassed either a dispensation or suspension power." (18)
So when Article II of the U.S. Constitution was written, the power to refuse enforcement of the laws was viewed as a monarchical abuse of power. "Versed in England's constitutional history, the Framers surely understood that the Constitution's grant of the executive power did not include dispensation, and that to charge the President with the 'faithful execution' of the laws underscored that fact." (19) As a result, the Take Care Clause continued the English tradition of denying this power to the executive, emphasizing that the President of the United States is not a king.
The Take Care Clause's Text
By commanding that the "[the President] shall take Care that the Laws be faithfully executed," (20) the Take Care Clause imposes a duty on the President, rather than conferring any additional power. This interpretation is confirmed by dictionary definitions around the time of our Founding. According to the 1828 edition of Noah Webster's American Dictionary of the English Language, one of the meanings of the verb "take" is "[t]o take care of, to superintend or oversee; to have the charge of keeping or securing." (21) In addition, the term "faithfully," according to the 1755 edition of Dr. Samuel Johnson's Dictionary of the English Language, means "strict adherence to duty and allegiance" and "[w]ithout failure of performance; honestly; exactly." (22) These definitions impose a requirement, not a prerogative.
Moreover, the Framers put the Take Care Clause in Section 3 of Article II, (23) rather than in Section 2, (24) where the majority of the executive powers are enumerated. (25) Section 2 empowers the President with the words "[the President] shall have Power." (26) In contrast, Section 3 does not speak of any "Power." (27) Section 3 includes four clauses, three of which impose duties by using the word "shall": (1) the President "shall" give Congress "the state of the union"; (2) the President "shall receive ambassadors and other public ministers"; and (3) the President "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States." (28) The remaining clause in Section 3 speaks of the President's prerogative, by stating the President "may" convene both Houses of Congress "on extraordinary occasions." (29) If the Framers meant the Take Care Clause to confer a presidential prerogative, rather than impose a duty, they would have similarly stated that the President may take care that the laws be faithfully...