Take Care of the Take Care Clause: Presidential Power Pushes Beyond Execution
Introduction
In a 920-page document titled Mandate for Leadership: The Conservative Promise, conservative leaders clamored for a reformation within the executive branch — namely, the legal codification of executive powers that can “break the bureaucracy to the presidential will” [1]. The move toward greater presidential supremacy is a recent trend to expand the degree to which the Executive Branch can act unilaterally. Beyond conservatives supporting Project 2025, bipartisan actors — including former and current presidents Biden and Obama — have pushed for this expansion in power, causing controversies in healthcare and immigration. The Constitution delineates the scope of the Executive’s powers in Article II regarding horizontal and vertical accountability and checks and balances. However, proponents of an expanded presidency are reinterpreting one particular clause, the Take Care Clause, to allow for discretionary actions that circumvent accountability channels. By interpreting the language of “faithfully executed” to grant interpretive judgment in areas such as military force and funding appropriation, presidents have increasingly utilized the Take Care Clause to advance personal agendas beyond upholding enforcement of Congressional law. This expansion of the Executive Branch’s autonomy signals erosion in horizontal accountability, especially concerning legislative oversight, and indicates a need to reinstate a better balance of powers.
Article II, Section 3
The Founding Fathers constructed Article II of the Constitution to limit the power of the executive. After breaking away from England’s monarchical tyranny, lawmakers saw executive supremacy as a political institution to avoid [2]. But to grant the president necessary abilities to fulfill his duties to the state, he was granted the Take Care Clause of Article II, Section 3 of the Constitution, which states: “The President shall take Care that the Laws be faithfully executed” [3]. The interpretation of “Laws” determines the framework within which the President can operate. If the constitutional purpose of Congress is to enact laws, then the President is restricted from making sure these laws are indeed enacted. However, Founding Fathers such as Alexander Hamilton understood that enacting a law must subsequently entail some method of enforcement. As the duty of enforcement falls on the President, they have the authority to determine how a law is carried out and implemented. This implies the Executive Branch reserves a limited right to interpretation [4]. Otherwise, for instance, the President would be tethered to the Judiciary to approve of every execution decision as Constitutionally valid [5]. Still, this right to interpretation only extends to the execution of law — procedural execution — as opposed to the Legislative power of enacting new policies through constitutional interpretation. Today, this separation of powers has eroded as modern presidents implement Executive Orders that apply discretionary interpretation on constitutional issues.
The Line Between Interpretation and Execution
During the mid-1900s, Court rulings reflected the Founders’ sentiment toward the Take Care Clause. The Supreme Court refused to grant the President any judgment in “faithful execution” outside of procedural interpretations of Congressional law. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Court ruled that President Truman could not seize control of steel mills during the Korean War to prevent a strike [6]. President Truman ordered the Secretary of Commerce to nationalize steel mills to support military production, but the Court held that the President could not take possession of private property without congressional authorization. This ruling supported the process of legislative oversight and reaffirmed the sequential chain in the process of implementing and executing laws [7]. President Truman could not interpret the Constitution, even under the justification of a national emergency, to bypass the legislative authority of Congress. Moreover, in Train v. New York (1975), President Nixon encountered similar checks, but this time in the context of budgeting. The Supreme Court ruled that President Nixon must allocate a given amount of funds toward environmental programs, as outlined by its spending laws such as the Federal Water Pollution Control Act Amendments of 1972 [8]. In this case, with execution defined as the appropriation of funds as Congress mandates, the Court further solidified the relationship between the two branches where the process of enactment — with regards to Constitutional interpretation — falls on the Legislative, while issues regarding execution fall on the President. In short, the President maintained the ability to interpret the procedure of implementing a law but not the ability to disregard one based on personal discretion.
Broadening Interpretation of Presidential Discretion
Recently, in U.S. v. Texas (2016), the Supreme Court ruled closer to allowing presidential discretion in implementing some form of Constitutional judgment. U.S. v. Texas surrounded President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) Act to determine whether it violated an overreach of Presidential discretion. Under DAPA, federal officials were tasked with deferring the removal of certain parents of U.S. citizens or lawful permanent residents [9]. However, twenty-two states argued that the discretionary nature of the Act violated the Take Care Clause, as well as portions of Article III relating to the separation of powers [10]. While the Court ultimately rejected President Obama’s Executive program geared at assisting families at the Southern Border, the extent of presidential power remained unclear. Justice Scalia’s untimely death forced a judiciary deadlock, and the Court conceded in affirming the decision of lower courts to block the implementation of DAPA [11]. The closeness of the decision represented growing sentiments that the enforcement powers of the office — in times of national urgency — could defer to presidential discretion.
Ambiguity from the Court regarding the extent of discretion in presidential policymaking increased in significance in 2019 when President Donald Trump authorized the creation of a Southern border wall under Proclamation 9844. Fearing a “border crisis,” President Trump called upon three statutes to justify the legality of his proclamation. One was the National Emergencies Act (NEA), which grants the President to declare a national emergency. The second allows the Secretary of Defense to enlist members of the Ready Reserve. The third allows the Secretary of Defense to begin “military construction projects…not otherwise authorized by law that are necessary to support such use of the armed forces” [12]. Under these three statutes, President Trump instituted a massive military endeavor to construct a physical wall across the U.S.-Mexico border line because he feared a national security crisis. Majorities of both Houses of Congress tried twice to terminate the emergency order, but President Trump vetoed both instances [13]. Furthermore, lower courts levied cases against President Trump, claiming that the reallocation of military resources and personnel — even under the justification of national security — represented a form of discretionary interpretation that overstepped the interpretive powers of Congress [14].
All of these attempts to curb President Trump’s discretionary policy ultimately failed until President Biden terminated Proclamation 9844 in 2021. The Supreme Court never ruled the proclamation unconstitutional, thereby taking a conciliatory stance toward allowing personal discretion when related to problems of national security and military mobilization [15]. President Trump had succeeded, in many senses, in opening the floodgates of personal discretion rooted in Constitutional interpretation. Proclamation 9844 involved a reinterpretation of “faithful execution” to encompass discretionary actions through military mobilization that pushed the boundaries of traditional executive enforcement. President Trump’s use of statutes to justify the implementation of a border wall represents a growing push for executive action outside of procedural interpretation — actions mandated by Congress — and into discretionary interpretations of Constitutionality.
Addressing Presidential Discretion Opponents of a narrow reading of the Take Care Clause argue that presidential discretion is paramount to respond to time-sensitive national emergencies, such as establishing international treaties or addressing a pandemic like COVID-19 [16]. After all, President Truman and Trump both personally saw their issues as pressing and under their judgment to address time-sensitive national security risks. In these instances, checks and balances push the needle toward a direction that the Founders worried about: for example, the fear that the Executive remains tethered to the Judiciary for approval of every action as Constitutional. However, efficiency in government response, even in emergencies, does not warrant overreach in presidential power. Emergency powers can still operate within legal restraints. In the case of the Cuban missile crisis — arguably one of the nation’s most time-sensitive crises — President Kennedy worked with legislators and operated within legal frameworks to negotiate with Russia. Establishing a hotline between the Kremlin and the White House and the signing of the Limited Nuclear Test Ban Treaty on July 25, 1963, are examples of infrastructure implemented to assist the president with decision-making but not give him free rein over Constitutional interpretation [17]. Presidents may still retain control over the execution of laws and regulate how the population responds to such treatment. Additional decision-making that deals with the personal discretion of the Executive trends closer to the executive supremacy that autocratic regimes commonly follow [18].
The Founding Fathers’ interpretation that presidential power over execution must adhere to Congressional mandates even when engaging in interpretative efforts must inevitably reconcile with the trending possibility that the Executive will act largely unilaterally and with personal discretion to justify interventions in Constitutional scenarios. Today, Presidents act within a governance system that allows the president to access Constitutional frameworks and override the Legislative branch’s checks and balances. Project 2025 is just one of the numerous efforts to codify the growing power disparity and ensure that presidential supremacy is protected and maintained. As lawmakers continue pushing to expand the definition of the Take Care Clause and provide presidential powers, it is paramount to understand the necessary checks that must be utilized to counter this expansion. Institutions of internal balance such as judicial review or overriding the president’s veto ensure that Constitutional and democratic values remain intact.
Bibliography
[1] Paul Dans and Steven Groves, eds., “Mandate for Leadership: The Conservative Promise” (The Heritage Foundation, 2023), https://static.project2025.org/2025_MandateForLeadership_FULL.pdf.
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[3] U.S. Constitution, art. 2, sec. 3, cl. 5.
[4] Alexander Hamilton, “Alexander Hamilton, Federalist, No. 70, 471--72,” March 15, 1788, https://press-pubs.uchicago.edu/founders/documents/v1ch9s10.html.
[5] Alexander Hamilton, Letters of Pacificus No. 1 (June 29, 1793), in The Papers of Alexander Hamilton, vol. 15, ed. Harold C. Syrett and Jacob E. Cooke (New York: Columbia University Press, 1969).
[6] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
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[8] Train v. City of New York, 420 U.S. 35 (1975).
[9] U.S. Department of Homeland Security, “Deferred Action for Parents of Americans and Lawful Permanent Residents Recession Memo (‘DAPA’),” June 15, 2017, https://www.dhs.gov/publication/deferred-action-parents-americans-and-lawful-permanent-residents-recession-memo-dapa.
[10] American Immigration Council, “Defending DAPA and Expanded DACA before the Supreme Court,” April 11, 2016, https://www.americanimmigrationcouncil.org/research/defending-dapa-and-expanded-daca-supreme-court.
[11] Elizabeth B. Wydra and Brianne J. Gorod, “United States v. Texas,” Constitutional Accountability Center, December 10, 2015, https://www.theusconstitution.org/litigation/united-states-v-texas-u-s-sup-ct/.
[12] National Emergencies Act, Pub. L. No. 94-412, § 201(a), 90 Stat. 1255, 1255 (1976) (codified as amended at 50 U.S.C. § 1621(a)); 10 U.S.C. § 12302(a).
[13] Sarah Binder, “The Senate Voted to Block Trump’s National Emergency Declaration. Now What?,” Washington Post, March 15, 2019, https://www.washingtonpost.com/politics/2019/03/15/senate-voted-block-trumps-national-emergency-declaration-now-what/.
[14] Lyle Denniston, “Constitutional Fight over Trump Border Wall Begins,” National Constitution Center, February 19, 2019, https://constitutioncenter.org/blog/constitutional-fight-over-trump-border-wall-begins.
[15] Samuel Weitzman, “Back to Good: Restoring the National Emergencies Act,” Columbia Journal of Law & Social Problems 54, no. 3 (February 22, 2024), https://jlsp.law.columbia.edu/wp-content/blogs.dir/213/files/2021/07/Vol54-Weitzman.pdf.
[16] Brian Finucane, “Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter,” Cornell Law Review 105, no. 7 (November 19, 2020).
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[18] David M. Driesen, “The Unitary Executive Theory in Comparative Context,” UC Law Journal 72, no. 1 (2021), https://repository.uclawsf.edu/hastings_law_journal/vol72/iss1/1.