« Saul Cornell Strikes Back (against Wrenn v. DC)
Michael Ramsey
| Main | Asher Steinberg on Textualist Pathologies
Michael Ramsey »

08/03/2017

Josh Blackman on the Take Care Clause [Updated]
Michael Ramsey

At Josh Blackman's blog: The Topsy Turvy Take Care Clause.

From 2014-2016, I was one of the few scholars who maintained that President Obama’s non-enforcement of the law ran afoul of his duty to take care that the laws are faithfully executed. Specifically, I charged that his inaction with respect to immigration (DACA and DAPA) and Obamacare (delay, suspension, and modification of the mandates) were not good faith exercises of the law. I developed these arguments at length, in law review articles, op-eds, amicus briefs, media appearances, and debates. For the most part, other scholars scoffed at my position, simply invoking the talisman of prosecutorial discretion. Other disparaged the notion that the Take Care clause was even justiciable.

Then Donald Trump happened. Almost overnight, the Take Care Clause had a renaissance. A blog by that name–which is quite fond of reviewing my work–sprouted up overnight. Countless posts charge that the President is not acting in good faith.

More recently, Noah Feldman used his influential Bloomberg column to assert that if President Trump declines to make the cost-sharing reduction (CSR) payments to insurers, he will violate his duty to faithfully execute the laws ...

...

...  Here, however, I part company with the take-carers. Congress never appropriated the funds to make those payments. Where there is no law to execute, the President is under no duty to act. To the contrary, as I wrote in Unraveled, President Obama’s decision to make those payments, without an appropriation, was itself a violation of the Take Care Clause. 

Additional discussion of the CSR payments by Professor Blackman:

D.C. Circuit Permits 16 States to Intervene in House of Representatives v. Price. What comes next?

New in National Review: “President Trump Must End Illegal Obamacare Payments to Congress and Insurers”

From the latter:

Over the weekend, President Trump fired a warning shot: “If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!” Within moments of the tweet, Obamacare supporters discovered a new clause of the Constitution with which to thwart the president’s agenda: Goodbye Foreign Emoluments Clause, hello Take Care Clause. Under our Constitution, the president has a duty to “take Care that the Laws be faithfully executed.”

Were Mr. Trump threatening to stop making payments that are required by Obamacare, I would hop on the bandwagon. The “BAILOUTS,” however, are not part of the law the president has a duty to enforce. To faithfully execute the law, in fact, President Trump must stop these payments. ...

Agreed: the larger point being that the President's duty to take care that the laws are faithfully executed only requires (and only allows) the President to use his constitutional executive powers to enforce the laws; it does not invest him with additional powers even where those powers would be conducive to enforcing the laws.  So, in the CSR payments situation, as I understand it, the President lacks power to make payments not authorized by law, even if those payments would facilitate the operation of a law he has a duty to enforce.

UPDATE:  A clarification from Marty Lederman:

For what it's worth, no one (least of all DOJ in the House v. Burwell case) is arguing that the Executive can "make payments not authorized by law."  The dispute is purely one of statutory interpretation, i.e., whether there is an appropriation to make such payments, or not.