Below is the testimony of Professor Nicholas Rosenkranz – you might want to skip to the end to RED TEXT see his conclusion if you don’t have enough time now to read his testimony.
U.S. House of Representatives
Committee on the Judiciary
The President’s Constitutional Duty to Faithfully Execute the Laws
December 3, 2013
NICHOLAS QUINN ROSENKRANZ
PROFESSOR OF LAW
GEORGETOWN UNIVERSITY LAW CENTER
SENIOR FELLOW IN CONSTITUTIONAL STUDIES
THE CATO INSTITUTE
Mr. Chairman, Representative Conyers, Members of the Committee: I thank you
for the opportunity to express my views about the President’s constitutional duty to “take
Care that the Laws be faithfully executed.”1
This is a timely and important hearing, because many of the legal controversies of
the day implicate this Presidential duty. In areas as important and diverse as healthcare,
immigration, nuclear waste storage, tax enforcement, military action, and foreign aid,
there has been an inchoate sense that the Administration has overstepped its authority.
But the criticism has generally been issue-specific, and it has often conflated policy
objections with constitutional objections. There has been very little systematic analysis of
this behavior as a pattern. And more to the point, there has been very little analysis of the
particular constitutional clause at issue.
The relevant clause of the Constitution, which should be the lodestar of this
discussion, is the Take Care Clause: “The President … shall take Care that the Laws be
faithfully executed.”2 To put these recent controversies in constitutional context, it is
essential to understand the meaning and purpose of this Clause. As always, it is best to
begin by parsing the constitutional text.
First, notice that this Clause does not grant power but rather imposes a duty: “The
President … shall take Care…”3 This is not optional; it is mandatory. Second, note that
the duty is personal. Execution of the laws may be delegated, but the duty to “take Care
that the Laws be faithfully executed”4 is the President’s alone. Third, notice that the
1 U.S. CONST. art. II, § 3.
2 Id. (emphasis added).
3 Id. (emphasis added).
4 Id. (emphasis added).
President is not required to take care that the laws be “completely” executed; that would
be impossible given finite resources. The President does have power to make
enforcement choices—however, he must make them “faithfully.” Finally, it is important
to remember the historical context of the clause: English kings had claimed the power to
suspend laws unilaterally,5 but the Framers expressly rejected that practice. Here, the
executive would be obliged to “take Care that the Laws be faithfully executed.”6
With these principles in mind, it is possible to view recent controversies through
the proper constitutional lens. For this purpose, I shall focus on three recent examples—
though, sadly, there are many others that one could choose. I shall focus on the
President’s unilateral decision to suspend certain provisions of the Affordable Care Act,
on the President’s unilateral abridgement of the Immigration and Nationality Act, and on
the IRS’s targeting of the President’s political adversaries.
I. ObamaCare Suspension
On July 2, 2013, just before the long weekend, the Obama Administration
announced via blog post that the President would unilaterally suspend the employer
mandate of ObamaCare7—notwithstanding the unambiguous command of the law. The
statute is perfectly clear: It provides that these provisions become effective on January 1,
2014.8 The blog post—written under the breezy Orwellian title “Continuing to Implement
the ACA in a Careful, Thoughtful Manner”—makes no mention of the statutory
This blog post raises the question of what it means to “take Care that the Laws be
faithfully executed.” Certainly, the adverb “faithfully” gives the President broad
discretion about how best to deploy executive resources and how best to execute the laws.
And the precise scope of this discretion may be the subject of legitimate debate. But this
breathtaking blog post was not a mere exercise of prosecutorial discretion or a necessary
calibration of executive resources. This was a wholesale suspension of law, in the teeth of
a clear statutory command to the contrary. Whatever it may mean to “Take Care that the
Laws be faithfully executed,” it simply cannot mean declining to execute a law at all.
As if the suspension weren’t enough, President Obama’s comments about it on
August 9, 2013—claiming that “the normal thing [he] would prefer to do” is seek a
5 F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND: A COURSE OF LECTURES DELIVERED,
302–03 (1st ed. 1908 & reprint 1919).
6 U.S. CONST. art. II, § 3. See also Michael W. McConnell, Op-Ed: Obama Suspends the Law, WALL ST. J.
(July 8, 2013), http://online.wsj.com/article/SB10001424127887323823004578591503509555268.html.
7 Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, U.S. DEP’T OF THE
TREASURY (July 2, 2013), http://www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-
ACA-in-a-Careful-Thoughtful-Manner-.aspx. The Obama Administration suspended implementation of 26
U.S.C. § 6055, 26 U.S.C. § 6056, and 26 U.S.C. § 4980H.
8 The Patient Protection and Affordable Care Act, Pub.L. 111-148, § 1502(e), 124 Stat. 119, 252 (March 23,
2010) (“The amendments made by this section shall apply to calendar years beginning after 2013.”); id. §
1513(d), 124 Stat. at 256 (“The amendments made by this section shall apply to months beginning after
December 31, 2013.”).
9 See Mazur, supra note 7.
“change to the law”10—added insult to constitutional injury. Indeed, the President seemed
annoyed when The New York Times dared to ask him the constitutional question.11 As for
Republican congressmen who questioned his authority, Mr. Obama said only: “I’m not
concerned about their opinions—very few of them, by the way, are lawyers, much less
constitutional lawyers.”12 Mr. Obama made no mention of, for example, Iowa Sen. Tom
Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who asked exactly
the right question: “This was the law. How can they change the law?”13 Senator Harkin’s
point, of course, is that a change like this is inherently legislative; it requires an
amendment to the statute itself.
But the President has been distinctly ambivalent about any such amendment. A
few months ago, he said that he would like to “simply call up the Speaker” of the House
to request a “change to the law” that would achieve his desired delay.14 But the truth, as
the President knows, is that he wouldn’t even need to pick up the phone: On July 17,
2013, the House of Representatives passed the Authority for Mandate Delay Act (with
229 Republicans and 35 Democrats voting in favor).15 This would have authorized
President Obama’s desired suspension of the law.16
But President Obama did not actually welcome this congressional ratification. To
the contrary, this bill—which stood to fix the constitutional problem that he himself had
created—the President deemed “unnecessary”.17 Indeed, he actually threatened to veto
it.18 In this case, it appeared that the President would actually prefer to flout the law as
written, rather than support a statutory change that would achieve his desired result. This
seems an almost willful violation of the Take Care Clause.
II. Immigration and Nationality Act Suspension
The second example, immigration, is almost an exact mirror of the first. In the
ObamaCare context, the President suspended an Act of Congress—a statute that was duly
10 President Barack Obama, Remarks by the President in a Press Conference, (Aug. 9, 2013),
11 See Jackie Calmes & Michael D. Shear, Interview with President Obama, N.Y. TIMES (July 27, 2013),
13 Jonathan Weisman & Robert Pear, Seeing Opening, House G.O.P. Pushes Delay on Individual Mandate
in Health Law, N.Y. TIMES (July 9, 2013), http://www.nytimes.com/2013/07/10/us/politics/house-goppushes-
14 President Barack Obama, Remarks by the President in a Press Conference, (Aug. 9, 2013),
15 See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. (2013). For final vote results for H.R.
2667, see http://clerk.house.gov/evs/2013/roll361.xml.
16 See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. (2013).
17 OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, STATEMENT OF ADMINISTRATION
POLICY, (July 16, 2013),
passed by both Houses of Congress, and which he himself had signed into law. In the
immigration context, the situation is the opposite. Rather than declining to comply with a
duly enacted statute, the President is complying meticulously—with a bill that never
became a law.
Congress has repeatedly considered a statute called the DREAM Act, which
would exempt a broad category of aliens from the Immigration and Nationality Act
(INA).19 The President favored this Act, but Congress repeatedly declined to pass it.20 So,
on June 15, 2012, the President announced that he would simply not enforce the INA
against the precise category of aliens described in the DREAM Act.21 He announced, in
effect, that he would behave as though the DREAM Act had been enacted into law,
though it had not.22
Once again, the President does have broad prosecutorial discretion and broad
discretion to husband executive resources. But in this case, it is quite clear that the
President is not merely trying to conserve resources. After all, his Solicitor General
recently went to the Supreme Court to forbid Arizona from helping to enforce the INA.23
And exempting as many as 1.76 million people from the immigration laws goes far
beyond any traditional conception of prosecutorial discretion.24 More to the point, this
exemption has a distinctly legislative character. It is not a decision, in a particular case,
that enforcement is not worth the resources; rather it is a blanket policy which exactly
mirrors a statute that Congress declined to pass.25 To put the point another way, the
President shall “take Care that the Laws”—capital “L”—“be faithfully executed”—not
19 See Elisha Barron, The Development, Relief, and Education for Alien Minors (Dream) Act, 48 HARV. J.
ON LEGIS. 623, 633 (2011); Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s
Nonenforcement of Immigration Laws, the Dream Act, and the Take Care Clause, 91 TEX. L. REV. 781,
783-784, 789 (2013).
20 The Dream Act of 2011 did not move past the committee stage in either the House or the Senate. See
Development, Relief, and Education for Alien Minors Act of 2011, H.R. 1842, 112th Congress (2011);
Development, Relief, and Education for Alien Minors Act of 2011, S. 952, 112th Congress (2011).
21 President Barack Obama, Remarks by the President on Immigration (June 15, 2012),
22 See id.; Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Sec., to David V. Aguilar,
Acting Comm’r, U.S. Customs & Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration
Servs. & John Morton, Dir., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to
the United States as Children, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (June 15, 2012),
23 See Brief for Respondent United States at 26, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-
182). The Solicitor General argued that “Arizona’s attempt to punish violations of federal law intrudes on
exclusive federal authority.”
24 JEANNE BATALOVA & MICHELLE MITTELSTADT, MIGRATION POLICY INST., RELIEF FROM DEPORTATION:
DEMOGRAPHIC PROFILE OF THE DREAMERS POTENTIALLY ELIGIBLE UNDER THE DEFERRED ACTION
POLICY 1 (2012), available at http://www.migrationpolicy.org/pubs/FS24_deferredaction.pdf.
25 See Memorandum from Janet Napolitano, supra note 22. See also In re Aiken Cnty., 725 F.3d 255 (D.C.
Cir. 2013) (Kavanaugh, J.) (“[T]he President may not decline to follow a statutory mandate or prohibition
simply because of policy objections. Of course, if Congress appropriates no money for a statutorily
mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of
unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory
mandates and prohibitions.”).
those bills which fail to become law. Here, in effect, the President is faithfully executing
the DREAM Act, which is not law at all, rather than the Immigration and Nationality Act,
which is supreme law of the land. The President cannot enact the DREAM Act
unilaterally, and he cannot evade Article I, section 7,26 by pretending that it passed when
it did not.
Indeed, the President himself made this exact point, eloquently, only 20 months
America is a nation of laws, which means I, as the President, am obligated
to enforce the law…. With respect to the notion that I can just suspend
deportations through executive order, that’s just not the case, because
there are laws on the books that Congress has passed… There are enough
laws on the books by Congress that are very clear in terms of how we have
to enforce our immigration system that for me to simply through executive
order ignore those congressional mandates would not conform with my
appropriate role as President.27
And just last week, in response to a heckler, the President expressly denied that he has “a
power to stop deportation for all undocumented immigrants in this country.”28 He
[W]e’re also a nation of laws. That’s part of our tradition. And so the
easy way out is to try to yell and pretend like I can do something by
violating our laws. And what I’m proposing is the harder path, which is to
use our democratic processes to achieve the same goal that you want to
What the President did not explain is how his current immigration policy is consistent
with that principle.
III. IRS Targeting
The third example is troubling in a different way. As is now well known, the IRS
subjected Tea Party organizations to Kafkaesque scrutiny and delay, particularly in the
run-up to the last election. A few months ago, a House Oversight Committee hearing
revealed that the IRS Chief Counsel’s Office had played a key role.30 The Committee
rightly zeroed in on this fact, because the Chief Counsel is one of only two political
26 U.S. CONST. art. I, § 7 (requiring bicameralism and presentment for a bill to become a law).
27 President Barack Obama, Remarks by the President at Univision Town Hall (Mar. 28, 2011),
28 President Barack Obama, Remarks by the President on Immigration Reform—San Francisco, CA (Nov.
25, 2013), http://www.whitehouse.gov/the-press-office/2013/11/25/remarks-president-immigration-reformsan-
30 Written Testimony of Carter Hull, Before the House Oversight and Gov’t Reform Comm. (July 18, 2013),
appointees at the IRS,31 appointed by President Obama32 and confirmed by the Senate.33
But what was missing from the hearing—and what has been missing from the
commentary throughout—is the constitutional context of this scandal.
The President has, of course, been at pains to distance himself from this scandal.
But, again, recall that the duty to “take Care” is personal. Execution of the laws may be
delegated; indeed, the Clause clearly contemplates that other officers—like the IRS Chief
Counsel—will do the actual executing. But the duty to “take Care that the Laws be
faithfully executed” is the President’s alone. For this reason, what the President knew
and when he knew it is, in a certain sense, beside the point; the right question is what he
should have known. It will not do for the President to say (erroneously) that the IRS is an
“independent agency” or to say (implausibly) that he learned about IRS targeting “from
the same news reports” as the rest of us.34 Not knowing what an executive agency is up
to—let alone not knowing that the IRS is, in fact, a bureau of an executive agency that
answers to the President—is not taking care that the laws be faithfully executed. If the
President was negligent in his supervision of the IRS (or somehow unaware that it was
subject to his supervision), then he failed in his duty to take care.
Now, again, it is true that the President is not required to take care that the laws be
“completely” executed; that would be impossible given finite resources. The President
does have power to make enforcement choices—however, he must make them
“faithfully.” If the President lacks the resources to prosecute all bank robbers, he may
choose to prosecute only the violent bank robbers; but he cannot choose to prosecute only
the Catholic bank robbers.35 Invidious discrimination is not faithful execution.
Discriminatory enforcement on the basis of religion would have horrified the
Framers of the Constitution. But there is one kind of discrimination that would have
worried them even more—the one kind that could undermine the entire constitutional
structure: political discrimination. The single most corrosive thing that can happen in a
democracy is for incumbents to use the levers of power to stifle their critics and entrench
themselves.36 This is devastating to a democracy, because it casts doubt on the legitimacy
of all that follows. Ensuring that this does not happen is perhaps the single most
important imperative of the President’s duty to take care that the laws be faithfully
31 See 26 U.S.C. § 7803(b)(1).
32 Press Release, The White House: Office of the Press Sec’y, President Obama Announces More Key
Treasury Appointments (Apr. 17, 2009), http://www.whitehouse.gov/the-press-office/president-obamaannounces-
33 Press Release, U.S. Dep’t of the Treasury, William J. Wilkins Confirmed as Chief Counsel for the
Internal Revenue Service, Assistant General Counsel for Treasury (July 28, 2009),
34 See President Barack Obama, Remarks by President Obama and Prime Minister Cameron of the United
Kingdom in Joint Press Conference, (May 13, 2013), http://www.whitehouse.gov/the-pressoffice/
2013/05/13/remarks-president-obama-and-prime-minister-cameron-united-kingdom-joint-. The IRS
is part of the Department of Treasury, not an independent agency. See 26 USC § 7803 (placing the IRS
Commissioner in the Department of the Treasury, and making him removable at the will of the President).
35 See Smith v. Meese, 821 F.2d 1484, 1492 (11th Cir. 1987).
36 See John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 621 (1998).
executed. If he gives only one instruction to his political appointees, it should be this: do
not discriminate on the basis of politics in your execution of the laws.
This, sadly, is the gravamen of the IRS scandal. Congress enacted a neutral
provision of the tax code, but an executive agency enforced it non-neutrally,
discriminating on invidious grounds. It discriminated against the Tea Party,37 the most
potent political force that the President’s party faced in the mid-term elections. It
discriminated against those who “criticize how the country is being run.”38 For good
measure, it reportedly discriminated against those “involved in … educating on the
Constitution and the Bill of Rights.”39 And it did all this while an embattled incumbent
President was running for re-election.40
The President may, alas, urge his supporters to “punish our enemies”41; but he
cannot stand oblivious while the IRS does just that. He may, alas, berate the Supreme
Court for protecting political speech42; but he cannot turn a blind eye while the IRS
muzzles his critics with red tape. He may, alas, call right-leaning groups a “threat to our
democracy”43—but the real, cardinal threat is unfaithful execution of the laws.
The President has a personal obligation to “take Care that the Laws be faithfully
executed.”44 The word “faithfully” is, perhaps, a broad grant of discretion, but it is also a
real and important constraint. The President cannot suspend laws altogether. He cannot
favor unenacted bills over duly enacted laws. And he cannot discriminate on the basis of
politics in his execution of the laws. The President has crossed all three of these lines.