In few cases in its long history has the Supreme Court had occasion to interpret Article II, Section 3 of the Constitution, which provides that the president “shall take care that the laws be faithfully executed.” This year it may have another. We’ll know by the end of the Court’s term in June, just as the presidential race is heating up.
United States v. Texas is the case to watch. At issue is President Obama’s executive action on immigration known as DAPA (Deferred Action for Parents of Americans). Under DAPA, undocumented immigrants who satisfy certain conditions may live here for three years, a temporary reprieve from deportation, and obtain work permits. The conditions are that they have children who are either American citizens or lawful permanent residents and that they have been in the United States since January 2010.
DAPA was announced on November 20, 2014. Texas, joined by 25 states, then sued, their common concern being the significant costs the states would have to absorb should DAPA take effect and otherwise deportable illegal immigrants stay in the United States. The costs would include subsidies for temporary driver’s licenses and outlays for health care, education, and law enforcement.
On the legal issues, the lower courts agreed that DAPA failed to comply with the notice-and-comment requirements of the Administrative Procedures Act. They had no need to address constitutional matters.
Appealing the case to the Supreme Court, administration lawyers took care to urge the justices not to take up constitutional questions. But Texas solicitor general Scott Keller invited the Court to consider “Whether DAPA is contrary to law or violates the Constitution.” The Court took the question and tightened its focus. In granting the case last month, it directed the parties to “brief and argue . . . Whether the Guidance violates the Take Care Clause of the Constitution.”
By its terms and in accord with its history, the take care clause imposes a duty on the president to faithfully enforce the law. That the Court has sought briefing and argument on whether DAPA violates the clause doesn’t mean, however, that the justices will decide the case on that basis. Nor must they: The Constitution gives Congress weapons—such as the power of the purse—that it can use to fight back politically against the executive in order to preserve its legislative prerogatives.
The Court may have directed the parties to brief and argue the take care question for a simple reason: to have a fuller picture of the controversy before it. In any case, responding to the question will afford Texas an opportunity to highlight the doctrine of “constitutional avoidance” as a reason for the Court to decide the case, as the lower courts did, on statutory grounds if it can.
Whatever the Court says about the Constitution in this case, if it says anything, our foundational law remains relevant to how the ordinary citizen thinks about DAPA and other policies effectively legislated by executive action. Consider that Article I of the Constitution begins this way: “All legislative powers herein granted shall be vested in a Congress of the United States . . .” All in a Congress, none in the executive. At one point Obama seemed to understand this, even in the context of immigration policy. On March 28, 2011, he said that “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.” Two years later, having suspended some deportations, Obama said that if he ordered any more, “I would be ignoring the law in a way that I think would be very difficult to defend legally.”
But that was then. Over the two terms of his presidency Obama has increasingly resorted to executive action of one form or another (executive order, presidential memorandum and directive, agency guidance) to make policy. He has governed using those instruments in a wide range of domestic policy contexts, including health care, drugs, and welfare, in addition to immigration. In foreign policy, too, most notably in effecting the Iran nuclear agreement and the rapprochement with Cuba. In every instance Obama has acted unilaterally—meaning Congress has not been involved. Lanhee J. Chen, a research fellow at the Hoover Institution, says that Obama’s use of executive action “to achieve his policy aims is without precedent in its disregard for the people’s elected representatives.”
Obama’s executive action presidency has produced an anti-constitutional rhetoric. The basic message is that Congress has failed to act, and “we can’t wait” or “I can’t wait” or “the world can’t wait” any longer to get the policy we want. The rhetoric rarely admits genuine policy and political differences between the elective branches. And it invites Americans to believe that the president has power to legislate. As for the take care clause and the duty of a president to take care that the laws are faithfully executed, it says . . . nothing!
Most of the Republican presidential candidates have vowed to undo Obama’s executive action presidency in substantial part if not entirely. (Ted Cruz has even written a law review article unambiguously titled “The Obama Administration’s Unprecedented Lawlessness.”) The undoing can be accomplished by (ironically) executive order, with the stroke of a pen. It’s likely that not all of Obama’s executive actions are illegal or unconstitutional; on some (few) of them a new Republican president might agree and work with Congress to enact through the regular legislative process. Obviously, care would have to be taken in making those evaluations. But the task would be worth the effort, for it would be a big first step toward the constitutional presidency whose time, we hope, is coming soon.
