# 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:** 4
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 26, 2016, 6:05pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/61 "2016-01-26T18:05:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If the executive announces an intention to explicitly flout Congress’ intent, I’m pretty sure the courts will step in at that point. So is the trick just to be dishonest about one’s intentions? I’m not suggesting that is what Obama is doing, but just for the purposes of argument take the following two examples: 1. Ted Cruz said that God told him that anything higher than a 20% tax was immoral and he wouldn’t enforce it, Congress be damned! 2. Ted Cruz cites the shortage of personnel in the IRS and declares that he must “prioritize” enforcement of the income tax laws. In the spirit of dedicating resources “where they are needed” he declares that so long as a person has paid 20% of their income in taxes, enforcement of collecting the remaining tax, or prosecuting the taxpayer will be “low priority.” You seem to be saying that #2 is okay, but #1 is right out. All that does is give a blueprint for the President to refuse to enforce laws he doesn’t like. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [January 26, 2016, 6:18pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/62 "2016-01-26T18:18:12Z")
To be clear: you don’t think there’s a significant difference between #1 and #2? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 26, 2016, 6:43pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/63 "2016-01-26T18:43:42Z")
> [@Fotheringay-Phipps](#): > > Who would have standing to sue in federal court? Anyone injured by the decision. That might include Congress simply as a matter of violating their statute, according to at least some courts. It would also include anyone injured by the enforcement policy–which would be easier or harder depending on the enforcement policy in question. I’m not saying standing would be straightforward. The Rehnquist and Roberts courts have made a mess of standing because they generally don’t like plaintiffs. But that’s the bed they have to lie in, and it’s not fundamentally different from any other violation of a statute. > [@Fotheringay-Phipps](#): > > And exactly how does a court force the executive branch to do something? (Jail them for contempt of court?) It doesn’t ever come to that, because the rule of law is strong enough in this country that executives do not ignore direct court orders, but the court could order contempt if an executive refused to follow an injunction. ---
**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 26, 2016, 7:19pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/64 "2016-01-26T19:19:48Z")
> [@Richard\_Parker](#): > > It doesn’t ever come to that, because the rule of law is strong enough in this country that executives do not ignore direct court orders, but the court could order contempt if an executive refused to follow an injunction. Am I a bad person because I think that would be really interesting to watch play out? 🙂 > [@Jimmy\_Chitwood](#): > > To be clear: you don’t think there’s a significant difference between #1 and #2? There is a difference in intent, but not in result. This would in fact be instructive on how to flout Congress’s wishes, if that was so desired. > [@adaher](#): > > Of course it has almost never been used to correct judicial error, but it also hasn’t been used in such a way as to encourage it as an effective veto of existing laws passed by Congress. > > So in other words, President Rubio can’t effectively nullify Davis-Bacon through the pardon power. I think this line of argument doesn’t work. The Presidential power to pardon is near absolute. There are virtually no rules on how it can be used. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 26, 2016, 8:13pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/65 "2016-01-26T20:13:24Z")
> [@Jimmy\_Chitwood](#): > > To be clear: you don’t think there’s a significant difference between #1 and #2? Yes. But to have that as the law means that a president who really means #1 only has to say #2 to achieve the exact same result. So long as we don’t say out loud what we are really doing, we can act like a dictator. It seems to be a meaningless distinction. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [January 26, 2016, 8:30pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/66 "2016-01-26T20:30:28Z")
> [@UltraVires](#): > > So is the trick just to be dishonest about one’s intentions? I’m not suggesting that is what Obama is doing, I _would_ say that. ISTM pretty obvious that the notion that the impetus for this executive decision is solely the lack of enforcement resources is a blatant legal fiction. Obama has been pretty clear that he views giving legal status to many of the illegal immigrants to be a good idea on its own merits. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [January 26, 2016, 9:17pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/67 "2016-01-26T21:17:09Z")
… ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 26, 2016, 10:09pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/68 "2016-01-26T22:09:39Z")
> [@Fotheringay-Phipps](#): > > Obama has been pretty clear that he views giving legal status to many of the illegal immigrants to be a good idea on its own merits. Yes. But he’s not doing that. What he’s doing is something more akin to decriminalizing illegal immigration for certain groups. They’re still not legal residents and they can still be prosecuted and deported. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 26, 2016, 11:07pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/69 "2016-01-26T23:07:39Z")
> [@Fotheringay-Phipps](#): > > I _would_ say that. > > ISTM pretty obvious that the notion that the impetus for this executive decision is solely the lack of enforcement resources is a blatant legal fiction. Obama has been pretty clear that he views giving legal status to many of the illegal immigrants to be a good idea on its own merits. I tend to agree, but I’m trying to be charitable and test the waters to see what role the courts should play in the “take care” clause. **RNATB** stated that intervention would be proper where the president openly flouts congressional intent. My response to that was that I disagreed with it because it would simply encourage policy making to be done in the shadows by using vague terms about “prosecutorial discretion” and “resource allocation.” I think that the courts need to do more that rely on the President’s words. When something happens like this, or my Cruz example, the courts need to see that for the policy making that it really is instead of giving full deference. I could see deference in close cases or even not so close cases, but when a president actively lobbies for a certain law, it fails to pass Congress, then he enacts it through enforcement (or lack thereof) actions, then it just reeks of a dictatorial decree. It’s a dangerous precedent to set. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 27, 2016, 10:02am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/70 "2016-01-27T10:02:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Yes. But he’s not doing that. What he’s doing is something more akin to decriminalizing illegal immigration for certain groups. They’re still not legal residents and they can still be prosecuted and deported. No they can’t. They will even get work permits. That’s not “legal status”, but it is a license to engage in illegal activity. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 27, 2016, 8:31pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/71 "2016-01-27T20:31:49Z")
> [@adaher](#): > > No they can’t. They will even get work permits. That’s not “legal status”, but it is a license to engage in illegal activity. Not exactly… Crossing the border illegally is a crime, but simply existing here, without permission and papers, is not actually a crime. It isn’t “illegal” to be here. It’s actionable; you can be deported. But it is not “criminal.” ---
**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 27, 2016, 9:06pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/72 "2016-01-27T21:06:03Z")
Actually, when I started this thread it was in part because of the current immigration case, but the idea was really from the implementation of the ACA. It seemed to me that the ACA required certain things like the employer mandate that were unilaterally delayed for what I thought were political reasons, in conflict with the law itself. Now, Adler at Volkh makes a similar point in [The illegal implementation of Obamacare](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/27/the-illegal-implementation-of-obamacare/): > [@](#): > > [quoting Nicholas Bagley]Two episodes raise especially serious legal concerns: the administrative delays and the decision to finance cost-sharing reductions out of an appropriation governing tax refunds. In both cases, Republican recalcitrance threatened to undermine the president’s signal achievement. And in both cases, the president appears to have broken the law. > Bagley is actually referring to multiple decisions made over many months, including the multiple delays of the employer mandate and the so-called “if you like it you can keep it” fix. Characterizing all of these delays as a single episode — one of the eight he examines — seems to stack the deck a little bit. Nonetheless, Bagley’s candor about the paltry legal justification for these actions is refreshing, even if he insists on stressing that there are still lots of legal rules the administration hasn’t violated. (As Mike Stern quipped, “Think of all the buildings Nixon didn’t break into.”) It’s things like this that I mostly had in mind. And there doesn’t seem to be any real consequences. Congress could have gone back and fixed parts of the ACA, but because that is unrealistic given the makeup of the current congress, Obama simply disregarded or delayed the requirements that were undesirable. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 27, 2016, 9:20pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/73 "2016-01-27T21:20:35Z")
Well, what consequences did you want? To me, it is unrealistic to expect that the ACA rollout would happen on time given the various legal challenges, and you can’t very well blame the administration for that (though you can certainly blame the largely Democratic-controlled Congress that passed it). ---
**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 27, 2016, 9:25pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/74 "2016-01-27T21:25:34Z")
I have no idea. But I also don’t think the President should be able to do what he did. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [January 27, 2016, 9:33pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/75 "2016-01-27T21:33:08Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, what consequences did you want? To me, it is unrealistic to expect that the ACA rollout would happen on time given the various legal challenges, and you can’t very well blame the administration for that (though you can certainly blame the largely Democratic-controlled Congress that passed it). If he makes a good faith effort to implement it but fails due to various legal challenges or other practical considerations, that’s not the subject of this thread. But if he says “this feature of the law is increasingly becoming extremely unpopular, and this risks giving ammunition to opponents of the entire law, and my political opponents generally, so I’ll just waive this provision of the law”, that’s something else. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 27, 2016, 10:43pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/76 "2016-01-27T22:43:04Z")
> [@Trinopus](#): > > Not exactly… Crossing the border illegally is a crime, but simply existing here, without permission and papers, is not actually a crime. It isn’t “illegal” to be here. It’s actionable; you can be deported. But it is not “criminal.” Why is this distinction important? I’m not trying to be snarky, I have heard this before, but I wonder why it is pointed out. These individuals committed an illegal act to be here, and they are not permitted to remain. The law says that they are to be deported. Why does it matter if we call it criminal, civil, administrative, etc.? ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 28, 2016, 2:05am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/77 "2016-01-28T02:05:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If the executive announces an intention to explicitly flout Congress’ intent, I’m pretty sure the courts will step in at that point. To be technical, the courts wouldn’t step in - someone would step in and sue in the courts. This is an important distinction, though, due to the issue of who would have standing to sue. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 28, 2016, 2:06am UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/78 "2016-01-28T02:06:31Z")
> [@UltraVires](#): > > Why is this distinction important? I’m not trying to be snarky, I have heard this before, but I wonder why it is pointed out. > > These individuals committed an illegal act to be here, and they are not permitted to remain. The law says that they are to be deported. > > Why does it matter if we call it criminal, civil, administrative, etc.? Because if it is criminal, you can go to prison for it. Deportation isn’t considered a punishment, it’s just correcting the problem. ---
**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:** [June 1, 2016, 4:09pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/79 "2016-06-01T16:09:12Z")
Some interesting developments ahead of an expected opinion later this month. The original judge at the district level has just [issued sanctions](http://pdfserver.amlaw.com/nlj/texas_order_20160519.pdf) against the DOJ based on the fact that DOJ lawyers apparently lied during proceedings of this case. The [DOJ has responded](http://pdfserver.amlaw.com/nlj/DOJ_TEXAS_20160531.pdf) here. The gist is that during the proceedings DOJ lawyers said that they were not in fact already engaging in the challenged conduct [Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. But the DOJ lawyers knew that this was not true and there were in fact deferrals already approved. Somewhere to the tune of 100K incidents. The sanctions imposed by the judge are as follows: [ul] [li]DOJ must provide list of all 100K folks that were processed. The list to remain sealed until SCOTUS rules.[/li][li]_Pro hac vice_ (ability for lawyer out of state to practice in state) status revoked for the counsel involved.[/li][li]Any D.C. based DOJ attorney who seeks to appear in any of the 26 states that is party to the suit must attend a legal ethics course.[/li][li]The Attorney General is required to appoint a person within the DOJ to oversee compliance[/li][li]The Attorney General is required to develop a comprehensive plan to prevent this type of unethical behavior in the future.[/li][/ul] I think the last three of these overstep the authority of the district court judge. The _pro hac vice_ status revocation is definitely okay. The list may be okay. The other three are hail marys. [Volokh has commentary](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/31/doj-to-judge-hanen-there-was-no-bad-faith-and-your-order-is-illegal/) here. Now is the time for last minute predictions. ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [June 1, 2016, 5:23pm UTC](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910/80 "2016-06-01T17:23:25Z")
> [@Bone](#): > > From the US Constitution, Article II, Section 3: > 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: > 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. Following the law is for the little people not our masters. [Previous page](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910.md?page=3) [Next page](https://boards.straightdope.com/t/the-president-shall-take-care-that-the-laws-be-faithfully-executed/743910.md?page=5)