Kara Sears
The U.S. Constitution does not explicitly state that the President shall execute the laws, but that he shall take care that the laws be faithfully executed. Legal scholars have extensively debated the interpretation of the Take Care Clause, which outlines the President's duty to supervise executive departments and ensure the faithful execution of laws. While the President is not required to personally enforce every law, they have the power to assign responsibility to heads of executive departments, who act as their subordinates. This raises questions about the limits of presidential power and the potential implications for non-enforcement of laws.
| Characteristics | Values |
|---|---|
| Can the president choose not to enforce a law? | The president is not solely responsible for ensuring the faithful execution of the laws. |
| Who enforces the laws? | The president can assign responsibility to the heads of the various executive departments. |
| What if the department heads act unlawfully? | The president can remove them from office. |
| What if the president refuses to execute a "shall" duty? | Aggrieved parties could seek to obtain a writ of mandamus. |
| Can citizens sue to compel governmental compliance with the law? | No, as per the Lujan v. Defenders of Wildlife case (1992). |
| Can the president be the only one to enforce the law? | No, it would be impossible for the president to supervise the day-to-day activities of each department. |
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What You'll Learn
The Take Care Clause
The modern interpretation of the clause is that the President is not solely responsible for ensuring the execution of laws. Instead, they have a general duty to supervise the executive departments and officers who carry out the laws. The President has the power to appoint and remove executive officers, thereby controlling them and ensuring the laws are executed faithfully. This power of supervision allows the President to delegate responsibility for executing the laws to the heads of various executive departments.
- Powers directly conferred upon the President by the Constitution
- Powers that congressional acts confer upon the President
- Powers that congressional acts confer upon heads of departments and other executive agencies
- Power that stems implicitly from the duty to enforce criminal statutes
- Power to carry out "ministerial duties", which executive officers can exercise with limited discretion
There is debate surrounding the President's obligation to enforce laws that they regard as unconstitutional. While some scholars argue that the Take Care Clause prohibits the President from refusing to enforce federal laws, others suggest that unconstitutional laws are void and not subject to the Clause. This issue has been a source of dispute, with some Presidents declaring their intention to ignore provisions they deem unconstitutional.
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The President's powers
The Take Care Clause of Section 3 of the Constitution states that the President "shall take Care that the Laws be faithfully executed". This clause has been interpreted to implicate five categories of executive power:
- The Constitution's enumerated powers in the opening and succeeding clauses of Article II
- Acts of Congress that give powers to the President
- Acts of Congress that give powers to heads of departments and other executive branch or administrative agencies
- Powers that arise implicitly from the duty to enforce the criminal statutes of the United States
- Executive officers' powers to carry out "ministerial duties" within their limited discretion
While the President is not required to personally execute the laws, they cannot completely refuse to enforce a law. Aggrieved parties can seek Writs of Mandamus for any refusal by the President to execute any "shall" duties. Additionally, the President's own party may decide to impeach and convict them for failure to execute their duties.
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Non-enforcement of federal drug possession laws
The President of the United States has the power to remove and supervise subordinates who wield executive power, meaning they do not have to personally ensure each department faithfully executes the laws. The modern interpretation of the take care clause is that the president is not solely responsible for ensuring the faithful execution of the laws. Instead, they have a general duty to supervise executive departments. However, this does not mean that the President can choose not to enforce a law. While the President cannot be required to personally perform the numerous details incident to services that the Constitution or federal laws may require, aggrieved parties could seek to obtain writs of mandamus for any refusal by the President to execute any "shall" duties.
In the context of federal drug possession laws, the Obama administration ordered the Department of Justice (DoJ) not to enforce these laws regarding cannabis when they conflicted with state laws that legalized possession. This was possible because the decision on whether or not to prosecute a particular offence is entirely at the discretion of the state.
The unlawful manufacture, distribution, disposition, possession, and/or use of a controlled substance or alcohol is regulated by a number of federal, state, and local laws. These laws impose sanctions in misdemeanor and felony convictions. For example, simple possession of any controlled substance (meaning having a small amount for personal consumption without intending to distribute or sell) is a misdemeanor under federal law, carrying a fine of at least $1,000 and no more than one year in prison. There are also enhanced penalties for distribution to individuals under 21 or distributions near schools, playgrounds, youth centers, and other specified locations.
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Writs of Mandamus
A writ of mandamus is a judicial remedy in the English and American common law system. It consists of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. Writs of mandamus are usually used when a government official has failed to act as legally required or has taken a legally prohibited action.
In the American legal system, it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A writ of mandamus can be filed in limited circumstances and cannot be used to seek review by an appellate court of an erroneous lower court decision or to order a lower court to perform a discretionary act. Mandamus is a discretionary remedy, and the application for it must be made in good faith. The petitioner must satisfy the court that they have the legal right to the performance of the legal duty, and mandamus will not be granted if adequate relief can be obtained by other means, such as an appeal.
An example of a party attempting to use a writ of mandamus, albeit unsuccessfully, was in Marbury v. Madison, when William Marbury attempted to have the Supreme Court issue a writ of mandamus to force Thomas Jefferson to install Marbury as a justice of the peace. In addition to issuing a writ of mandamus to a government official, a court may also issue a writ of mandamus to a lower court, as demonstrated in State ex rel. Gerstein v. Schwartz.
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The President's duty
The President of the United States has a duty to uphold and enforce the laws of Congress. This is outlined in the Take Care Clause, which states that the President "shall take Care that the Laws be faithfully executed".
However, the President does not personally execute the law; instead, they fulfil this duty through their subordinates in the executive branch. The President has the power to assign responsibility to the heads of the various executive departments, and when these department heads act lawfully, the President is attributed to the act. Department heads have the authority to implement orders or instructions as they see fit, as long as they are acting within the law. If a department head acts unlawfully, the President can remove them from office.
While the President does have a duty to ensure the faithful execution of the laws, they are not required to personally supervise every department. As the Supreme Court noted in 1843, requiring the President to do so would be "impossible". Instead, the President's duty generally requires their superintendence of the administration.
There is some debate over the extent of the President's duty to enforce the laws. Some argue that there is a practical minimum level of action required by the President, below which even their own party may decide to impeach and convict them for failing to execute their duties. In such cases, aggrieved parties could seek to obtain Writs of Mandamus to compel the President to execute any "shall" duties. However, it is unclear how enforceable these writs would be in practice.
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Frequently asked questions
The president does not have to ensure each department executes the laws personally. The president's power to supervise subordinates with executive power means they can control officers and ensure faithful execution of the law. The president can assign responsibility to the heads of the various executive departments, and when the department heads act lawfully, the president is attributed to the act.
The Take Care Clause is part of Section 3, which states that the president shall "take Care that the Laws be faithfully executed". Legal scholars have extensively debated the clause, which potentially implicates five executive powers.
Aggrieved parties could seek to obtain Writs of Mandamus for any refusal by the President to execute any "shall" duties. However, the practical 'minimum' is probably when the president's own party decides to impeach and convict him for failing to execute the duties.
The last three presidents have instructed the federal government not to prosecute marijuana cases in legal states. However, this could be changed overnight if a new president was elected.
