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Unfaithful Executive

from the magazine

Unfaithful Executive

On presidential oaths and obligations Winter 2015

Every president’s first official act is to affirm the constitutional oath to “faithfully execute the Office of President of the United States” and to “take care that the laws be faithfully executed.” In fact, it is by taking that oath that he becomes president. Barring tragedy, the president’s last official act is to witness his successor make the same pledge.

The oath is so central to our republic that when President Obama and Chief Justice John Roberts accidentally misphrased one line of it in 2009, during Obama’s first inauguration, the White House decided to do the whole thing over the next day. One might argue that a small verbal miscue could have no effect on the transfer of presidential power. But “the oath appears in the Constitution itself,” as the White House counsel explained, “and out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.”

In hindsight, it’s ironic that “faithfully” was the “one word” misplaced by the president and chief justice. “Faithful execution” of the laws is one of the Constitution’s most vexing concepts. Set forth in Article II, it embodies centuries of hard-earned Anglo-American experience in self-government under law. Professor Philip Hamburger recounts that history in his recent book, Is Administrative Law Unlawful? Describing King Charles II’s and James II’s efforts to disregard unilaterally laws regarding religion, and the subsequent prohibition of such attempts to nullify laws in the 1689 Declaration of Rights, Hamburger writes that, “as might be expected, American constitutions generally precluded any executive acts suspending or dispensing with the law.” Law professors Robert Delahunty and John Yoo make similar points in a recent Texas Law Review article, noting that Pennsylvania’s James Wilson, the Take Care Clause’s original proponent, explained years after the Constitution’s ratification that the president has no authority “to make, or alter, or dispense with the laws.”

But even if one accepts the premise that presidents may not “suspend” or “dispense with” the law in general, questions still arise in the operation of government, often justifying the executive branch’s decision not to enforce a statute. In a recent opinion criticizing the Obama administration’s refusal to obey statutes regarding development of the Yucca Mountain nuclear waste facility, Brett Kavanaugh, a prominent conservative judge on the U.S. Court of Appeals for the D.C. Circuit, cited “two principles rooted in Article II of the Constitution that give the Executive authority, in certain circumstances, to decline to act in the face of a clear statute.” First, “the President possesses significant independent authority to assess the constitutionality of a statute” and may decline to observe those that he finds unconstitutional. Second, “under Article II, the President possesses a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law”—indeed, while Congress surely can define criminal and civil laws, it “may not mandate that the President prosecute a certain kind of offense or offender.”

Unfortunately, no bright line exists separating a president’s decision to invoke either of those justifications as grounds not to enforce a law against a limited number of violators and the president’s effective nullification of the law altogether. Everyone recognizes intuitively the difference between a sheriff letting speeders off without a ticket and a sheriff tacitly declaring his county a no-speed-limit zone. But the line separating the two ends of the spectrum is difficult, if not impossible, to discern.

When Obama campaigned for the White House in 2008, he joined many other Democrats in condemning President George W. Bush’s use of “signing statements” narrowly to construe federal laws touching on the president’s powers. Obama excoriated the Bush administration’s efforts “to change the meaning of the legislation, to avoid certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.” He added: “Any President takes an oath to ‘preserve, protect and defend the Constitution of the United States.’ The American people need to know where we stand on these issues before they entrust us with this responsibility—particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.”

But that was then. After years of controversy over his targeted nonenforcement of federal laws—from “waiving” inconvenient provisions of the Affordable Care Act to disregarding provisions of the Clean Air Act that would render his climate-change program unsustainable—the president announced that he was effectively waiving the federal immigration laws with respect to 5 million illegal immigrants. He justified his policy on the basis of scarce government resources—the administration cannot deport all 11 million illegal immigrants, the argument goes, so it should at least set policies that prioritize particular deportations over others. Obama buttressed his move with memoranda from the Department of Homeland Security, setting forth the new policies on prosecutorial discretion and a 33-page memo from the Justice Department’s Office of Legal Counsel, densely packed with legal analysis attesting to the program’s lawfulness.

Lots of debate will ensue over the extent to which the administration’s non-deportation policy finds support in the maze of statutes comprising American immigration laws. But stepping back from the minutiae, one is struck by the gulf between the legal arguments proffered by the administration and the substance of its policy. The OLC memo asserts that the president’s policy of systematic nonenforcement, far from thwarting Congress, actually “is consistent with the removal priorities established by Congress,” in light of the scarcity of funds that Congress appropriates for deportations. Yet in his remarks announcing the policy, President Obama stressed that his action was necessary precisely because Congress had not passed legislation “fixing this broken immigration system.” Similarly, the OLC memo tries to downplay the impact of the administration’s action, asserting that it is not “an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases” but instead a general framework that “provides for case-by-case determinations” based on each “individual alien’s circumstances,” leaving “ample room for the exercise of individualized discretion by responsible officials.” Yet the documents make no serious attempt to explain how or why individuals meeting the policy’s broad standards would ever be singled out for harsher treatment—and Obama, to the contrary, announced to all illegal immigrants satisfying these conditions that “you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.”

Most important, where OLC concludes that the president’s policy does not, “under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match [his] policy preferences,” the president speaks to the contrary. “I just took an action to change the law,” he told an audience days after the OLC issued its analysis.

It is this unbridgeable gap between the president’s actions and the Justice Department’s rationalizations that reveals Obama’s failure to satisfy his constitutional obligation to “take care that the laws be faithfully executed.” Though a certain degree of statutory under-enforcement is tolerable (and often laudable) under our constitutional framework, the president is not “faithful” when his approach is fundamentally dishonest. “[T]he constitutional charge to the President to take care that the laws be faithfully executed,” wrote Attorney General William Wirt to President James Monroe in 1823, requires the president to see that each of his officers “performs his duty faithfully—that is, honestly: not with perfect correctness of judgment, but honestly.” The emphasis on the words “faithfully” and “honestly” in that quotation comes from Wirt himself. The current president and attorney general would do well to emphasize faithfulness and honesty, too.

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