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11/12/2021

George Mader: 'The Laws' of the Take Care Clause Do Not Include the Constitution
Michael Ramsey

George Mader (William H. Bowen School of Law -- University of Arkansas at Little Rock) has posted Taking Care With Text: 'The Laws' of the Take Care Clause Do Not Include the Constitution, and There Is No Autonomous Presidential Power of Constitutional Interpretation (Denver Law Review, forthcoming) (44 pages) on SSRN.  Here is the abstract:

Departmentalism posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the executive branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause lists the Constitution as a portion of “the supreme Law of the Land.” Therefore, the President is to execute the Constitution. Or so the common argument goes. The presidential oath to “execute the office of President” and “to the best of [the President’s] Ability, preserve, protect, and defend the Constitution” is often enlisted in support of the argument, or even offered as a separate basis for the President’s power of autonomous constitutional interpretation.

This article offers a textual analysis of not only the Take Care Clause and the Supremacy Clause, but also the presidential oath and other clauses relevant to the textual argument for an autonomous presidential power of constitutional interpretation. The textual analysis has the following results. First, “the Laws” in the Take Care Clause do not include the Constitution, contrary to widely held assumption. Second, the presidential oath, standing alone, cannot support a textual argument for an autonomous presidential power of constitutional interpretation. Those two results collapse the textual argument for departmentalism. Third, the constitutional text as a whole, and most prominently the nearly identical language used in Article VI to define “the supreme Law of the Land” and in Article III to express the extent of judicial power, strongly indicates judicial interpretations are supreme over conflicting executive interpretations.

As often seems the case when the text of the Constitution is analyzed carefully, there are some rewarding secondary insights gained along the way. In this instance, working through the intratextual links among various clauses sheds light on the rarely discussed congressional power “[t]o provide for calling forth the Militia to execute the Laws of the Union.” There is textual evidence “the Laws” of the Take Care Clause and “the Laws of the Union” may mean the same thing: federal statutes and treaties, but not the Constitution.