# The President … shall take Care that the Laws be faithfully executed **URL:** \ **Category:** Great Debates\ **Created:** [January 22, 2016, 9:23pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910 "2016-01-22T21:23:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 22, 2016, 9:23pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/1 "2016-01-22T21:23:03Z")
From the US Constitution, Article II, Section 3: > [@](#): > > He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; **he shall take Care that the Laws be faithfully executed** , and shall Commission all the Officers of the United States. In [US v. Texas](http://www.scotusblog.com/case-files/cases/united-states-v-texas/), SCOTUS has recently granted cert and what I think is not a common course of action, has added a question for review that was not originally presented by the petitioners. That question was: > [@SCOTUS](#): > > Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3. I expect the specific fact pattern of the case to matter quite a bit, but I’m mostly interested in the broad implications of this clause and how it may be justiciable. It seems clear to me that this clause imposes a duty on the President. But since there has been scant litigation around this clause, I want to explore the extent of that duty. It is a given that there exists discretion in both enforcement and prosecution. When faced with a scarcity of resources, priorities must be established that would focus on certain targets and defocus on others. The key question is how this interacts with the duty to take care that the laws be faithfully executed. There have been a few notable examples recently that could frame the discussion. Implementation of parts of the ACA were unilaterally delayed by the Obama administration contrary to the text of the law. I believe in the gay rights arena certain provisions of DOMA were deemed unenforceable (I’m sketchy on some of the details on that one). And in the Texas v. US, the Obama administration has set guidelines that exempts large swathes of folks which seems go go against the spirit of the immigration rubric that Congress has established. Do you think this duty limits the extent of prosecutorial and/or enforcement discretion in any way? If yes, what are those limits, and if no, then how does that reconcile with the duty imposed? And if there is a duty to perform that is being unfulfilled, how would that be remedied if the executive truly did not want to enforce various laws or provisions of laws? I’m of the opinion that discretion in this area is very wide, I just can’t think of how wide that would be. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 22, 2016, 9:43pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/2 "2016-01-22T21:43:28Z")
Just to save time – no, the president has no constitutional duty to deport all undocumented immigrants. That’s what this is about, right? ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [January 22, 2016, 10:14pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/3 "2016-01-22T22:14:41Z")
I don’t believe courts should take action based on the part you bolded. It’s a duty with an inherently ambiguous meaning, and one that can and should be interpreted using existing political mechanisms. If the American people don’t like how the President is enforcing the law, they are free to choose a different President. If Congress sees the problem as emergent, they are free to impeach and remove a President who is not acting on his duty. There is no need for courts to intervene. This is different from, say, gay marriage, where a number of states were acting - presumably with popular support - to deny a Constitutionally guaranteed right of a minority. In that case, you wouldn’t expect political action to solve the problem, and the courts’ role is specifically carved out to protect minorities. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [January 22, 2016, 10:21pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/4 "2016-01-22T22:21:51Z")
This goes back a hell of a lot further than the examples the OP cited. Thomas Jefferson was the first President to refuse to spend money that Congress had allocated for specific things. James Monroe was the first President to issue a signing statement (writing into a law a statement of what the a President _believes_ it means and how it might be implemented.) Reagan, Bush 41 and Clinton perfected the art of issuing signing statements that enacted a law while at the same time stating why they intended to ignore whole parts of it. Bush 43 elevated it to a high art. It’s definitely a trick that requires no particular philosophical or partisan orientation. > [@](#): > > And if there is a duty to perform that is being unfulfilled, how would that be remedied if the executive truly did not want to enforce various laws or provisions of laws? The answer to every question about remedies against the President is “impeachment.” One of the articles of impeachment against Andrew Johnson was “Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.” One of the articles of impeachment against Bill Clinton was for obstruction of justice. Two of the proposed articles of impeachment against Richard Nixon dealt with obstruction. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 22, 2016, 10:35pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/5 "2016-01-22T22:35:08Z")
As a broader principle, the American legal system has generally held that there is no obligation on law enforcement to act against a specific crime. It’s a recognition that there are more crimes out there than any possible level of law enforcement could hope to act on. So there will always be crimes that law enforcement doesn’t act on and law enforcement can’t be held liable for a specific crime they didn’t act on. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 22, 2016, 11:42pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/6 "2016-01-22T23:42:26Z")
> [@Little\_Nemo](#): > > As a broader principle, the American legal system has generally held that there is no obligation on law enforcement to act against a specific crime. It’s a recognition that there are more crimes out there than any possible level of law enforcement could hope to act on. So there will always be crimes that law enforcement doesn’t act on and law enforcement can’t be held liable for a specific crime they didn’t act on. I agree with this, however there are differences in the language used in the constitution here. The “shall” part imposes a specific duty. That is different than law enforcement. Even then though, the rationale that is typically used is that resources are limited so discretion is used to determine the best use of those resources. I think one of the key parts of the clause is the word “faithfully”. This to me is analogous to the phrase “in good faith”. [Randy Barnett makes this argument here](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/20/the-presidents-duty-of-good-faith-performance-2/), which I won’t quote from because it’s quite long. Essentially, if there are limited resources for enforcement, it is still acting in good faith to enforce the laws based on some set of principles or guidance with very wide latitude. However, if the intent is to in fact undermine the law by not enforcing it, then that can not be said to be acting in good faith and would be in breach of the duty that is established by the clause in question. And determining whether actions are in good faith or not have been justiciable. I understand in the case of the President it’s more complicated than that and impeachment is always an available avenue. That seems like overkill IMO. Consider the example with marijuana. If the Obama administration said it was no longer going to enforce federal laws wrt marijuana would that be acceptable? What about if federal laws requiring background checks for firearm purchases through dealers, could the president unilaterally say that these would no longer be enforced? That seems like too much discretion when it contravenes the direct will of Congress. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 22, 2016, 11:45pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/7 "2016-01-22T23:45:22Z")
Seems like impeachment is the proper mechanism if Congress thinks the president is derelict in his duty. I don’t see that it makes sense to involve the courts, getting in-between Congress and the Prez. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [January 23, 2016, 6:17am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/8 "2016-01-23T06:17:40Z")
> [@Do\_Not\_Taunt](#): > > I don’t believe courts should take action based on the part you bolded. It’s a duty with an inherently ambiguous meaning, and one that can and should be interpreted using existing political mechanisms. If the American people don’t like how the President is enforcing the law, they are free to choose a different President. If Congress sees the problem as emergent, they are free to impeach and remove a President who is not acting on his duty. There is no need for courts to intervene. > [@John Mace](#): > > Seems like impeachment is the proper mechanism if Congress thinks the president is derelict in his duty. I don’t see that it makes sense to involve the courts, getting in-between Congress and the Prez. Let’s take a different federal law: minimum wage. In our hypothetical scenario, it’s February of 2017, and President Cruz issues an executive order stating that no attempts will be made to prosecute any employer that pays less than the minimum wage. Companies across the country start paying some of their employees less than the federal minimum wage. The federal government does nothing to stop them. The GOP-controlled Congress shows no interest in impeachment. Should the courts take any action to intervene and force the President to enforce the law? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 23, 2016, 6:45am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/9 "2016-01-23T06:45:34Z")
In the minimum wage example, individual employees would have standing to sue. They don’t have to sue the President; they sue the payroll department of the specific branch of the government they work for. It’s a bad example, because it doesn’t work the same way. It can be addressed as an individual wrong, and doesn’t have to involve the President as a defendant at all. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 23, 2016, 7:58am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/10 "2016-01-23T07:58:18Z")
> [@Trinopus](#): > > In the minimum wage example, individual employees would have standing to sue. They don’t have to sue the President; they sue the payroll department of the specific branch of the government they work for. > > It’s a bad example, because it doesn’t work the same way. It can be addressed as an individual wrong, and doesn’t have to involve the President as a defendant at all. That’s true – except that as a practical matter, employees don’t often sue–they complain to the Department of Labor, who can enforce, including by lawsuit, the statute on their behalf. So if the DOL, at the behest of President Cruz, no longer undertook employee enforcement actions and pointed out that employees could sue if they wished, the reaction of liberals would be considerably less sanguine than you suggest. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [January 23, 2016, 10:44am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/11 "2016-01-23T10:44:12Z")
I don’t see a suggestion of how sanguine anyone would be here nor how sanguine anyone is touches on the OP’s question. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 23, 2016, 11:24am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/12 "2016-01-23T11:24:46Z")
> [@BrainGlutton](#): > > Just to save time – no, the president has no constitutional duty to deport all undocumented immigrants. > > That’s what this is about, right? Not exactly. If the President just didn’t want to deport everyone, he’d be well within his powers, although it would be shady and an abuse of prosecutorial discretion. It would be like the President directing the IRS to go easier on the tax collection. Where he probably went too far is in effectively legalizing them, giving them work permits, making them eligible for some government benefits. A police officer has the discretion to decide whether or not to pull you over for speeding. He does not have the authority to give you a “speeding permit”. That’s effectively what the President is trying to do. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 23, 2016, 11:27am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/13 "2016-01-23T11:27:37Z")
> [@John\_Mace](#): > > Seems like impeachment is the proper mechanism if Congress thinks the president is derelict in his duty. I don’t see that it makes sense to involve the courts, getting in-between Congress and the Prez. Impeachment is an extreme remedy. Having courts define the faithful execution clause more clearly is a lot less disruptive. THe courts get between the President and Congress all the time. Line item veto comes to mind. Nixon’s impoundment of federal funds. If a President cannot refuse to spend money appropriated, then he can’t refuse to enforce the laws that the money was appropriated for. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 23, 2016, 2:31pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/14 "2016-01-23T14:31:59Z")
> [@Bricker](#): > > That’s true – except that as a practical matter, employees don’t often sue–they complain to the Department of Labor, who can enforce, including by lawsuit, the statute on their behalf. But if the DoL did nothing, employees would more often sue. No? They don’t often sue now because they generally don’ have to. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [January 23, 2016, 2:41pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/15 "2016-01-23T14:41:26Z")
You’re flipping burgers for $8 and the minimum wage is say $10. Are you going to have money to hire a lawyer? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 23, 2016, 2:43pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/16 "2016-01-23T14:43:34Z")
Which is why it’s not a good idea to decide that the President can just choose not to enforce the law, even though money is specifically appropriated for that particular law, as is the case with the Dept. of Labor and immigration laws. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [January 23, 2016, 3:03pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/17 "2016-01-23T15:03:32Z")
> [@BobLibDem](#): > > You’re flipping burgers for $8 and the minimum wage is say $10. Are you going to have money to hire a lawyer? > [@adaher](#): > > Which is why it’s not a good idea to decide that the President can just choose not to enforce the law, even though money is specifically appropriated for that particular law, as is the case with the Dept. of Labor and immigration laws. A contingency fee class action suit is highly likely in the case of minimum wage, virtually impossible in the immigration case. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2016, 3:11pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/18 "2016-01-23T15:11:16Z")
> [@Bricker](#): > > That’s true – except that as a practical matter, employees don’t often sue–they complain to the Department of Labor, who can enforce, including by lawsuit, the statute on their behalf. > > So if the DOL, at the behest of President Cruz, no longer undertook employee enforcement actions and pointed out that employees could sue if they wished, the reaction of liberals would be considerably less sanguine than you suggest. It doesn’t have to be hypothetical. Liberals did accuse the Bush administration of intentionally choosing to not enforce anti-trust laws and civil rights laws. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 23, 2016, 3:16pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/19 "2016-01-23T15:16:31Z")
> [@adaher](#): > > Not exactly. If the President just didn’t want to deport everyone, he’d be well within his powers, although it would be shady and an abuse of prosecutorial discretion. It would be like the President directing the IRS to go easier on the tax collection. > > Where he probably went too far is in effectively legalizing them, giving them work permits, making them eligible for some government benefits. A police officer has the discretion to decide whether or not to pull you over for speeding. He does not have the authority to give you a “speeding permit”. That’s effectively what the President is trying to do. Agreed. I also agree that there needs to be a less drastic option than impeachment. A president could have a good faith basis for believing that what he is doing is prosecutorial discretion, but is simply wrong. He shouldn’t be removed from office simply for being wrong on a legitimate legal dispute. I think that what Obama is doing sets very bad legal precedent because it allows the executive to make laws or simply not enforce those he or she doesn’t like. As you said, it is one thing to acknowledge the fact that you cannot catch every single speeder so you prioritize enforcement by only ticketing those 10mph over, but it is another thing altogether to say that you won’t enforce the speeding laws and allow drag racing on the interstate. The marijuana laws are a better example. Fine, we won’t waste federal resources by bringing a federal prosecution for every guy caught with a dime bag. But to allow Colorado to openly flaunt the law with a state distribution system is absurd.\* \*I believe that states should be able to regulate marijuana as they see fit. However federal law, which has been upheld as constitutional, forbids it. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 23, 2016, 3:23pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/20 "2016-01-23T15:23:31Z")
Well, with state marijuana laws, diplomacy also comes into play, since the US is a dual sovereignty system. Federal law is supreme, but that doesn’t mean it’s always wise for the federal government to impose its will by force. That’s why I also don’t consider sanctuary cities the scandal that a lot of conservatives do. [Next page](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910.md?page=2)