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10/31/2016

Jack Goldsmith & John Manning: The Protean Take Care Clause
Michael Ramsey

Jack Landman Goldsmith III (Harvard Law School) and John F. Manning (Harvard Law School) have posted The Protean Take Care Clause (164 U. Pa. L. Rev. 837 (2016)) on SSRN.  Here is the abstract:      

The Supreme Court invokes Article II’s Take Care Clause often and for many purposes. First, 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. 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. Third, the Court has treated the Take Care Clause as the source of the President’s prosecutorial discretion — a power that may give the President room to reshape the effective reach of laws enacted by Congress. Fourth, the Court has identified the Take Care Clause as the direct source of the President’s constitutional obligation to respect legislative supremacy. Indeed, the Court has read the clause as a negation of any presidential power to dispense with or suspend federal law. Fifth, 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. 

The Court’s reliance on the Take Care Clause to serve so many ends simultaneously is striking. The Court’s decisions rely heavily on the Take Care Clause but almost never interpret it, at least not in the conventional way one thinks of the Court’s interpreting the Constitution. With rare exception, the Court has not parsed the text of the clause or examined its historical provenance (except insofar as the clause was invoked in the First Congress to justify the removal power). In addition, at least some of the ways in which the Court has used the clause are in tension with one another. The instantiation of strong prosecutorial discretion, for example, may run into the scruple against dispensation that the Court also ascribes to the clause. Such tensions, moreover, require line-drawing that raises unacknowledged questions about the availability of judicially manageable standards. Without attempting to resolve the meaning of the Take Care Clause, this Article examines its many uses in the case law and asks whether the Court has legitimately treated the clause as a proxy a freestanding separation-of-powers principles.

In my view the clause serves, at most, the fourth of the five functions the authors identify.  Arguably, though, it is redundant even in this function, the duty being conveyed by a combination of the supremacy clause and the presidential oath.  In any event, it seems to me that the clause's role in the constitutional structure has been massively overplayed.  After all, it appears in Article II, Section 3 (not section 2), after the President's obligation to give Congress information on the state of the union, and just before the obligation to commission officers.