Executive Overreach: Can Presidents Contradict The Constitution?

The US Constitution grants the president executive powers, including the ability to issue executive orders, which are written directives with the same power as federal law. However, the president cannot make laws that contradict the Constitution or federal law. While the president has some discretion in enforcing laws, they are required by the Take Care Clause to “take Care that the Laws be faithfully executed”. This means that the president must enforce laws as written by Congress, and the Supreme Court's interpretation of those laws. If a president refuses to enforce a law, the only punishment is impeachment and removal from office by Congress.

Executive orders

Article II, Section 1 of the Constitution vests executive powers in the president, requiring that the president "shall take Care that the Laws be faithfully executed". The president is also the "Commander in Chief of the Army and Navy of the United States", as stated in Article II, Section 2. The president has broad powers in areas such as control and operation of the federal government, federal agencies, and foreign affairs.

While an executive order can have the same effect as a federal law, Congress can pass a new law to override an executive order, but only for those orders enacted "pursuant to powers delegated to the President" by Congress. Congress cannot directly modify or revoke an executive order that was issued pursuant to powers granted exclusively to the president by the Constitution.

Every single president, from George Washington to Donald Trump, has issued executive orders. While some are mundane, such as declaring a federal holiday, others have been among the most important actions the US government has ever taken. Abraham Lincoln, for example, used an executive order to address slavery during the Civil War.

In summary, executive orders are a powerful tool available to the president, with the same force as federal law in certain circumstances. However, they are subject to checks and balances, and cannot override federal law or the Constitution.

The 'Take Care' Clause

The Take Care Clause, as outlined in Article II, Section 3 of the US Constitution, stipulates that the President "shall take Care that the Laws be faithfully executed". This clause outlines the President's duty to ensure the faithful execution of federal laws and the control of executive officers responsible for implementing those laws. This clause grants the President broad powers in areas such as the control and operation of the federal government, federal agencies, and foreign affairs.

The Take Care Clause has significant implications for executive power, encompassing at least five categories. Firstly, it includes powers directly conferred upon the President by the Constitution's Article II. Secondly, it covers powers that congressional acts bestow directly upon the President. Thirdly, it involves powers that congressional acts delegate to heads of departments and other executive agencies of the federal government. Fourthly, it includes powers derived from the duty to enforce US criminal statutes. Lastly, it confers the power to carry out ministerial duties, allowing executive officers some discretion in their execution.

The Take Care Clause has been a subject of ongoing disputes and varying interpretations. One controversy surrounds the President's obligation to abide by, defend, and enforce laws they consider unconstitutional. Some scholars argue that the Take Care Clause prevents the President from refusing to honour, defend, and enforce federal laws, even if they believe parts of those laws are unconstitutional. However, throughout history, some Presidents, such as Thomas Jefferson, have refused to enforce statutes based on their policy disagreements or beliefs about unconstitutionality.

The Take Care Clause also intersects with the President's ability to issue executive orders, which are written policy directives with the force of federal law. While Congress can override or restrain executive orders through various methods, the Take Care Clause underpins the President's broad authority to issue directives. The Supreme Court has upheld this authority in cases like Trump v. Hawaii (2018), where it recognised the President's power to block the entry of certain foreign nationals into the US.

Congress's role

The US Constitution divides the federal government into three branches: the executive, legislative, and judicial branches. The legislative branch, or Congress, is responsible for making laws. Congress has the power to pass new statutes, control taxation, spending, and certain war powers. It also has the authority to override a presidential veto, with a two-thirds majority vote in both houses.

Congress plays a crucial role in checking the power of the executive branch, including the president. It can pass laws to override executive orders issued by the president, provided it has the constitutional authority to legislate on the issue. This ensures that the president cannot use executive orders to sidestep the checks and balances in the Constitution and take over powers from other branches of government.

While the president is responsible for enforcing the laws written by Congress, they do have some discretion in how these laws are executed. The "Take Care" Clause in Article II, Section 3, Clause 5 of the Constitution states that the president must "take Care that the Laws be faithfully executed". However, this clause also grants the president considerable leeway in prosecutorial discretion and selecting funding priorities.

In addition to passing laws, Congress has other tools at its disposal to restrain executive orders. For example, it can attempt to withhold spending on programs created by an executive order or pass a new law to override an executive order, as long as it was enacted pursuant to powers delegated to the president by Congress.

The Supreme Court also plays a crucial role in interpreting the Constitution and ensuring that the actions of both the executive and legislative branches are in line with it. If a presidential executive order is found to be unconstitutional or in violation of federal law, the courts can intervene to safeguard the rule of law.

Supreme Court's role

The Supreme Court is the highest judicial body in the United States and plays a crucial role in interpreting and enforcing the Constitution. When there is a dispute over whether a law or executive order contradicts the Constitution, the Supreme Court has the final say.

The Supreme Court's role in this context is to act as a check and balance on the executive and legislative branches of the government. The Court ensures that the President and Congress do not exceed their constitutional powers. If a law or executive order is found to violate the Constitution, the Supreme Court can strike it down and prevent its enforcement.

For example, in the Youngstown case, the Supreme Court invalidated an executive order issued by President Harry Truman in 1952, which attempted to seize control of the steel mills during a labour dispute in the midst of the Korean War. The Court found that the order exceeded the President's constitutional powers.

Similarly, the Supreme Court can also uphold executive orders if it determines that the President has been granted the necessary powers by Congress. For instance, in Trump v. Hawaii (2018), the Court upheld an executive proclamation blocking the entry of certain foreign nationals into the United States, finding it consistent with the broad statutory text of the Immigration and Nationality Act and the deference traditionally accorded to the President in immigration matters.

The Supreme Court's role is essential to maintaining the integrity of the Constitution and preventing the abuse of power by the executive and legislative branches. While the President is required to enforce laws passed by Congress, the Supreme Court serves as the final arbiter of whether those laws are consistent with the Constitution.

In summary, the Supreme Court plays a vital role in interpreting and enforcing the Constitution, acting as a check and balance on the other branches of government. Its decisions shape the understanding and application of constitutional principles, ensuring that the President and Congress remain within the bounds of their constitutional authority.

Checks and balances

The US Constitution has a set of checks and balances to ensure that no branch of the government is more powerful than another. The President, as part of the executive branch, is limited by the Constitution and the content of the laws it enforces. While the President has the power to issue executive orders, these cannot override federal laws and statutes. Executive orders are written directives, signed by the President, that order the government to take specific actions to ensure "the laws be faithfully executed".

The President is required to "take care that the laws be faithfully executed", as per Article II, Section 3, Clause 5 of the United States Constitution, also known as the "Take Care" Clause. This means that the President must enforce the law as written by Congress. However, the President has discretion in how the law is enforced and can choose not to enforce a law, as long as Congress does not care. The only real punishment a President can receive for not enforcing the law properly is impeachment and removal from office by Congress.

Congress can pass a new law to override an executive order, but only for those orders enacted "pursuant to powers delegated to the President" by Congress. Congress can also use other methods to restrain executive orders, such as attempting to withhold spending on programs created by an executive order. The courts can also weigh in and decide cases where presidential executive orders are challenged, and can hold an executive order as unlawful if it violates the Constitution or a federal statute.

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