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05/23/2018

The President, the First and Fourteenth Amendments, and the Take-Care Clause
Chris Green

Recent cases at the Supreme Court, the Ninth Circuit, and the Southern District of New York all pose an important issue that could be clarified with more attention to the Take-Care Clause of Article II.  Trump v. Hawaii, the travel-ban case argued at the Supreme Court last month, featured an Establishment Clause issue added by the Court itself. Yet the First Amendment applies only to Congress, not executive officers. The DACA case at the Ninth Circuit, Regents v. DHS, featured an argument under the Equal Protection Clause, which doesn't even apply to Congress, and certainly not the President. Finally, today, in Knight Institute v. Trump, SDNY Judge Buchwald held that the President violated the First Amendment by blocking particular users on Twitter.

None of the litigants or amici in these cases has couched the arguments against presidential discrimination in terms of the Take-Care Clause: "he shall take Care that the Laws be faithfully executed." But this is a much better home, textually, for allegations of unconstitutionally discriminatory presidential behavior than the First or Fourteenth Amendments. As readers of this blog will surely know quite well, constitutional interpretation is sometimes difficult. But interpretive issues do not get any easier than whether "Congress" or "State" includes the President.

We might imagine a hypothetical: in 1790, would it have been constitutional for President Washington to have enforced the criminal law only against his political enemies (as few as they were at the time)? This seems a paradigmatic violation of the take-care duty: to be "faithful"--to be bona fide--means, in part, not to be invidiously discriminatory. Nicholas Quinn Rosencranz has suggested that "the Take Care Clause ... reflects a principle of nondiscrimination (on the basis of speech and religion, among other things) in the execution of law."

The Take-Care Clause has, alas, received almost no attention in Trump v. Hawaii, Regents v. DHS, or Knight Institute. This is unfortunate. None of these cases, however, is final. The Supreme Court has another month to think about including a discussion of the take-care duty in the Hawaii case, and the Ninth and Second Circuits still have the chance to do the same in Regents and Knight. The issue of the textual foundations for the President's nondiscrimination duty is surely worth at least a learned footnote, or three!