It's at the heart of the case Texas brought against the Obama Administration's executive actions regarding immigration - allowing some to be exempt from deportation for a while. The question seem to be how much discretion do presidents get when implementing the law? When does discretion violate the take care clause? The purpose of the clause is to limit the powers of the executive - to make it adhere to the laws passed by the legislative branch, but can these limits be too severe?
Apparently the Supreme Court has never ruled on what the take clause actually means - so this is new turf.
For more on the case, click here for United States v Texas.
- Heritage Foundation: Take Care Clause.
For the article click here.
Apparently the Supreme Court has never ruled on what the take clause actually means - so this is new turf.
For more on the case, click here for United States v Texas.
- Heritage Foundation: Take Care Clause.
For the article click here.
When a court confronts a claim that a law is not being enforced and thus the executive branch has not “taken care” to execute the law, its review begins with the actual constitutional text. Doing that with the Take Care Clause, one of its words leaps immediately into prominence: the word “faithfully.”
That word seems at least to imply a measure of choice, of discretion. What sort of executive implementation of a law passed by Congress is “faithful,” and what would be “unfaithful”? And, by the way, “faithful” to what or to whom? (The records of the Philadelphia convention are not much help in answering such questions; the Take Care Clause was talked about very little there.)
Structurally, the word “faithfully” modifies “execute,” but isn’t the Founders’ thought behind the phrase that the mode of execution be “faithful” at least to the words chosen by Congress? And maybe, also, faithful to the purpose Congress had in mind?
That second question, of course, draws one immediately into the long-standing debate among Supreme Court Justices: are the only clues to what Congress had in mind the words of a law, or should one also take into account how Congress debated the law in order to see what purpose or policy the lawmakers were embracing?
When the Supreme Court takes up in April the constitutionality of President Obama’s broad change in immigration law, some Justices will focus only on the words of existing law regarding deportation of illegal aliens, and some will search for the congressional purpose.
They will then move from those starting points, comparing them to the specific terms of what President Obama’s aides put together in the plan to delay deportation for at least 4 million immigrants. Under the policy, if a given individual is allowed to remain, that person can then get a work permit and will qualify for some public benefits.
The crucial finding in this comparison will be either that Congress did give the executive branch a good deal of leeway on how to enforce the immigration law so that deferred deportation is “faithful” to the law, or that Congress made its intent very clear so that little was left to executive discretion, and deferred deportation is “unfaithful” to the law, and thus invalid under the Take Care Clause.
If the court does get to this constitutional issue (there are also procedural and statutory issues in the case, too, and those might be decisive on their own), the Justices very likely will have to provide a full explanation of what that clause means – doing that for the first time in history.
