Constitution Check: What does the “Take Care Clause” mean?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a big constitutional question in front of the Supreme Court in the case about President Obama’s immigration orders.

President Barack Obama talks on the telephone to the crew of the Space Shuttle Atlantis from the Oval Office, Wednesday, May 20, 2009. Official White House photo by Pete Souza.


“The Justices will confront the fundamental tension of the Obama years: whether the president is using the substantial powers of his office to propel the nation past political gridlock or whether he has ignored constitutional boundaries to unilaterally impose prescriptions that require congressional approval.   The court amped up the legal importance of the case by adding a constitutional question: whether Obama’s actions violated the ‘Take Care’ clause, which commands the president to ‘take care that the laws be faithfully executed.’ ”

 – Excerpt from a story by Washington Post staff writers Robert Barnes and Juliet Eilperin on January 19, when the Supreme Court announced it would rule on President Obama’s deferred deportation program for immigrants who entered the country illegally.

“The open-ended nature of the inquiry under the Take Care Clause – whether a particular exercise of discretion is ‘faithful’ to the law enacted by Congress – does not lend itself easily to the application of set formulas or bright-line rules….Neither the Supreme Court nor the lower federal courts have squarely addressed [the] constitutional bounds… of the exercise of enforcement discretion generally.”

– Excerpt from a Justice Department legal memorandum dated November 19, 2014, interpreting the government’s power to set priorities and use discretion in deciding to defer deportation of unlawful aliens.  That is the power that is now under review by the Supreme Court in the case of United States v. Texas, to be heard in April.


When the delegates to the Philadelphia convention that drafted the Constitution focused on the powers of the presidency, they wanted to create an office with energy and the capacity to act quickly, but they also wanted to put limits on the use of presidential power to head off any illusions that the holder of that office had the unchecked authority of a king.

The president was given roles in the legislative process – proposing measures and signing or vetoing completed bills – but the Founders included an explicit mandate that the president respect the work of Congress, directing that “he shall take care that the laws be faithfully executed.”

Like many provisions of the Constitution, the real-world meaning of the Take Care Clause depends upon its interpretation – especially how it is read by the Supreme Court and the lower courts in actual legal cases.   Over the life of the Constitution, there have been many rulings on the duties of executive agencies as they applied the laws under their assigned duties, but none has defined the outer limits of discretion under that constitutional clause.

Probably the most important of the lower-court rulings was a decision in the 1985 case of Heckler v. Chaney.  In that case, prison inmates facing death sentences sued because the federal Food and Drug Administration had refused to review the legality of specific drugs that were going to be used in execution by lethal injection.   FDA was shirking its duty to carry out federal drug laws, the inmates contended.

The Supreme Court ruled that the courts simply had no power to judge the FDA’s decision not to enforce those laws, because the question of enforcement had been committed by Congress to that agency’s discretion.  The ruling still stands as a broad endorsement of the idea that, if Congress passes a law leaving a lot of leeway to the agency assigned to enforce it, the Take Care Clause is not violated even if the agency refuses to enforce, taking into account all of the factors that it believes should influence the use of its resources.

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.