The Protean take care clause.

• Author: Goldsmith, Jack
• Position: Symposium: The Bounds of Executive Discretion in the Regulatory State

INTRODUCTION I. THE CASE LAW A. The Removal Power B. Standing Doctrine C. Prosecutorial Discretion D. Legislative Supremacy and the Antidispensation Principle E. Presidential "Completion Power" II. "TAKE CARE" QUESTIONS FOR THE COURT A. (Non)interpretation of the Take Care Clause 1. Text and Structure 2. Interpretive Canons 3. History and Constitutional Meaning B. Consistency and Line Drawing . CONCLUSION INTRODUCTION

Most of Article II, Section 3 of the Constitution sets forth mundane presidential responsibilities or powers. Section 3 prescribes the President's duty "from time to time" to report to Congress on "the State of the Union" and to recommend to that body "such Measures as he shall judge necessary and expedient." (1) It also gives the President discretion to call an adjourned Congress back into session and, when the Houses cannot agree about adjournment, to "adjourn them to such Time as he shall think proper." (2) And while one must go to the Appointments Clause in Section 2 in order to find the power actually to appoint "Officers of the United States," (3) Section 3 makes clear that it is the President who must sign their commissions. (4) That latter section also prescribes the presidential duty to "receive Ambassadors and other public Ministers," which Hamilton described as a ministerial duty largely "without consequence." (5)

Nestled amidst this set of largely technical provisions is one that has become an "elephant[] in [a] mousehole" (6)--the Take Care Clause. (7) In simple but delphic terms, the clause states that the President "shall take Care that the Laws be faithfully executed." (8) Today, at least, no one can really know why the Framers included such language or placed it where they did. (9) Phrased in a passive voice, the clause seems to impose upon the President some sort of duty to exercise unspecified means to get those who execute the law, whoever they may be, to act with some sort of fidelity that the clause does not define. (10) Through a long and varied course of interpretation, however, the Court has read that vague but modest language, in the alternative, either as a source of vast presidential power or as a sharp limitation on the powers of both the President and the other branches of government.

Consider the following examples: First, and perhaps most prominently, the Court has relied on the President's duty to "take Care that the Laws be faithfully executed" to establish the power to remove officers who do not follow the President's directives. (11) Second, the Court has used the Take Care Clause to define the limits of Article III standing, holding that the constitutional requirements of injury, causation, and redressability help to ensure that the President rather than the federal judiciary retains primary responsibility for the legality of executive decisions. (12) Third, the Court has treated the Take Care Clause as the source of the President's prosecutorial discretion (13)--a power that, as recent events have shown us, may give the President room to reshape the effective reach of laws enacted by Congress. (14) Fourth, the Court has treated the Take Care Clause as the direct constitutional source of the President's obligation to respect legislative supremacy. (15) Indeed, the Court has read the clause as a negation of any presidential power to dispense with or suspend federal law. (16) Fifth, in at least one high profile case, the Court has read the Take Care Clause as the source of inherent presidential authority to take acts necessary to protect the operations of the federal government, even in cases in which no statute provides explicit authority to do so. (17)

Two things stand out about the Court's reliance on the Take Care Clause to serve so many ends simultaneously. The first is that, in each of these contexts, the Court treats the meaning of the clause as obvious when it is anything but that. The Court's decisions rely heavily on the Take Care Clause but almost never interpret it, at least not in any conventional way. The Court does not typically parse the text of the clause or try to situate it in the broader constitutional structure that gives it context. Nor does the Court typically examine the clause's historical provenance (except to invoke an almost equally conclusory set of interpretations by members of the First Congress in the Decision of 1789). (18)

The second striking element is that the functions that the Court ascribes to the Take Care Clause are often in unacknowledged tension with one another. For instance, deriving a strong prosecutorial discretion from the clause may collide with the scruple against dispensation that the Court also reads into it. (19) Similarly, the Court has said that the Take Care Clause precludes presidential lawmaking while also finding that the clause justifies the exercise of a presidential completion power--an implied presidential authority to prescribe extrastatutory means when necessary to execute a statute. (20) The internal tensions, moreover, often give rise to doctrines that ask for judgments of degree--line drawing that does not lend itself readily to judicially manageable standards.

A brief Article is no place to try to fill all the interpretive and analytical gaps in the Court's Take Care Clause jurisprudence or to wade into the rich debates that have engaged legal scholars, if not the Court. Instead, the Article brings together various doctrines in order to show that the Court uses the Take Care Clause as a placeholder for more abstract and generalized reasoning about the appropriate role of the President in a system of separation of powers. It also sketches lines of inquiry that the Court might pursue if it were ever to approach the Take Care Clause seriously on the clause's own terms.

Part I describes five of the Court's structural doctrines that rely on the Take Care Clause. In order to draw attention to the Court's methodological approach to the clause, it emphasizes the tools the Court does or does not bring to bear on construing the clause. Part II shows the high level of generality at which the Court reads the clause. If the Court wishes to use the clause as more than a marker for freestanding separation-of-powers analysis, this Article suggests several question's the Court must resolve about the clause's import.

1. THE CASE LAW

   1. The Removal Power

      The Court has repeatedly relied on the Take Care Clause to justify the idea that the President must retain at least some control over those who execute the laws, notwithstanding a statute limiting presidential authority over the law's administrators. Though the Court had adverted to the idea before, (21) Chief Justice Taft's opinion for the Court in Myers v. United States gave the fullest account of the notion that the presidential duty to oversee faithful execution of the laws implied a presidential power to remove those who executed them. (22) At issue was a statute that prohibited the President from removing a postmaster first class without first securing the advice and consent of the Senate. President Wilson had fired Myers, the postmaster in Portland, without the requisite Senate approval, and Myers sued for backpay. (23) The government defended on the ground that the President had a constitutional right to remove Myers without the Senate's approval. (24)

      In a seventy-one page opinion for six members of the Court, Chief Justice Taft found illimitable presidential authority to remove an executive officer, at least one who was appointed by the President by and with the advice and consent of the Senate. His holding rested, in part, on the conclusion that the Vesting Clause of Article II (25) assigned the President the same "executive" removal authority that the common law had invested in the Crown and that the Articles of Confederation had given the old Congress. (26) The Court also invoked a course of governmental practice that stretched from 1789 until the enactment of the Tenure in Office Act during the struggle between President Andrew Johnson and the Republican Congress during Reconstruction. (27) The Court's opinion also relied centrally on the Take Care Clause. Chief Justice Taft invoked that clause to hammer home the implication that a President charged with exercising all of the executive power must have the means to control subordinates through whom he or she would necessarily act:

      As [the President] is charged specifically to take care that [the laws] be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. (28) Taft's opinion buttressed this structural reading of Article II by noting that the President can "fulfill the [take care] duty" only through subordinates who "aid him in the performance of the great duties of his office and represent him in a thousand acts to which it can hardly be supposed his personal attention is called." (29) In matters of foreign relations, Chief Justice Taft thought it obvious that, because "the discretion to be exercised is that of the President in determining the national public interest.... his cabinet officers must do his will" on pain of removal. (30) But he saw no basis for distinguishing between the President's power to remove an officer who "discharges a political duty of the President or exercises his discretion" and one who "engage[s] in the discharge of their other normal duties." (31) By virtue of Article II's assignment of the executive power to the President alone, he or she might "properly supervise and guide [officers'] construction of the statutes...