Take Care Clause

                The topic of discussion for this Constitution Monday comes from Article II, Section 3:  “[The President] shall take Care that the Laws be faithfully executed….”  This clause is also known as the Faithful Execution Clause.  This clause of the United States Constitution gives the people the Right to expect their President to administer and execute the laws of the land faithfully.

                “It is the duty of the President to see that the federal laws are enforced as the supreme law of the land and that anything in the constitutions or laws of the various states to the contrary be subordinated to the federal statutes.  This enforcement may be done through the courts, or, where force is necessary, the President is authorized to call out the militia or the army to restore peace or enforce the law.

                “When the President is enforcing the laws of the nation, the judiciary has no authority to intervene….

                “In connection with a strike in Chicago during 1895, the court sustained the power of the President to intervene with military force after a court had enjoined the strikers from interfering with the transportation and delivery of the mails.”  (See W. Cleon Skousen, The Making of America – The Substance and Meaning of the Constitution, p. 162.)

                “The Take Care Clause … is best read as a duty that qualifies the President’s executive power.  By virtue of his executive power, the President may execute the lawful and control the lawful execution of others.  Under the Take Care Clause, however, the President must exercise his law-execution power to `take Care that the Laws be faithfully executed.’ …

                “To be sure, the extent of the faithful-execution duty is rather unclear.  Plainly, the President need not enforce every law to its fullest extent.  Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution.  Moreover, the pardon power (see Article II, Section 2, Clause 1) supplies a constitutional reason for concluding that the President need not enforce the law every time he feels there is a violation, for, notwithstanding his faithful-execution duty, the President may pardon an offense even before a trial or conviction.  It is also possible that the clause does nothing more than incorporate the English Bill of Rights provisions that forbade the Crown from dispensing or suspending the law.  Under this reading of the clause, the President can neither authorize violations of the law (he cannot issue dispensations) nor can he nullify a law (he cannot suspend its operation).  He has, nonetheless, very wide discretion in enforcing the criminal law….

                “In modern times, the Take Care Clause has been cited most frequently (sometimes in dissent) as a reason for strictly enforcing Article III’s case or controversy requirement.  To the extent that the judiciary allows plaintiffs without `standing’ to prosecute allegedly illegal activity, the judiciary may be usurping the President’s Take Care duty.  Unlike the executive, the judiciary does not have a roving commission to ensure faithful law execution.  Accordingly, some members of the Court have claimed that the Take Care Clause has negative implications for the judiciary’s role in law execution; that is, while the executive has a general commission to execute the laws, the judiciary may only vindicate the laws when there is a proper case or controversy before them.)  (See The Heritage Guide to the Constitution, pp. 223-224.)