The separation of powers - As chief executive, including the “take care” clause

Learning Outcomes

After reading this article, you will be able to explain the President’s role as chief executive, including the meaning and scope of the “take care” clause. You will understand how this clause shapes the President’s duty to enforce federal law, the limits on executive discretion, and the relationship between executive orders and congressional statutes. You will be able to identify and apply these principles to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the constitutional powers and limits of the President as chief executive. This article focuses your revision on:

• The President’s duty to enforce federal law under Article II, including the “take care” clause.
• The scope and limits of executive enforcement discretion.
• The relationship between executive orders and congressional statutes.
• The separation of powers and checks on executive power.
• The consequences of executive refusal to enforce or implement laws.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. The “take care” clause in Article II of the U.S. Constitution requires the President to:
   1. Propose new laws to Congress.
   2. Faithfully execute the laws of the United States.
   3. Interpret the Constitution for the courts.
   4. Approve all state laws.
2. If Congress passes a statute requiring the President to spend appropriated funds for a specific purpose, the President:
   1. May refuse to spend the funds if he disagrees with the policy.
   2. Must spend the funds as directed by Congress.
   3. May use the funds for any executive branch activity.
   4. May veto the statute after signing it.
3. Which of the following is true regarding executive orders?
   1. They can override federal statutes.
   2. They must be consistent with existing law.
   3. They require approval by the Supreme Court.
   4. They are binding on state governments.

Introduction

The U.S. Constitution divides federal power among three branches: legislative, executive, and judicial. The President, as chief executive, is charged with enforcing federal law. Article II, Section 3, contains the “take care” clause, which states that the President “shall take care that the laws be faithfully executed.” This clause is central to understanding the President’s enforcement duties and the limits of executive discretion.

Key Term: Take Care Clause The constitutional provision in Article II, Section 3, requiring the President to ensure that federal laws are faithfully executed.

The President’s Duty to Enforce the Law

The “take care” clause imposes a mandatory duty on the President to enforce all valid federal statutes. The President cannot refuse to enforce a law simply because of policy disagreement or personal preference. This duty applies even if the President believes a law is unwise or unnecessary.

Key Term: Chief Executive Power The President’s authority under Article II to direct the executive branch and enforce federal law, subject to constitutional and statutory limits.

Executive Discretion and Enforcement Limits

While the President must enforce the law, there is some room for discretion. The executive branch may prioritize enforcement resources or decline to prosecute in individual cases, especially where resources are limited. However, the President cannot issue a blanket refusal to enforce an entire law that is constitutional and validly enacted.

Key Term: Executive Order A directive issued by the President to manage operations of the federal government, which must be consistent with existing statutes and the Constitution.

Relationship Between Executive Orders and Statutes

Executive orders are tools for the President to direct executive branch agencies. However, executive orders cannot override or contradict federal statutes. If an executive order conflicts with a statute, the statute prevails. Congress may limit or direct executive action through clear statutory mandates.

Congressional Control and the “Take Care” Clause

If Congress enacts a statute requiring the President to take a specific action, such as spending appropriated funds, the President must comply unless the statute is unconstitutional. The President has no power to “impound” (withhold) funds when Congress has clearly directed that they be spent for a particular purpose.

Checks on Executive Enforcement

The judiciary can review executive actions to ensure compliance with statutory and constitutional requirements. If the President refuses to enforce a law, affected parties may seek judicial relief, although courts may decline to intervene in some cases as nonjusticiable “political questions.”

Worked Example 1.1

Congress passes a law requiring the President to distribute disaster relief funds to states affected by hurricanes. The President disagrees with the policy and instructs the executive branch not to distribute the funds.

Answer: The President’s refusal violates the “take care” clause. The President must enforce valid statutes and cannot withhold funds when Congress has mandated their expenditure for a specific purpose.

Worked Example 1.2

The President issues an executive order directing federal agencies to ignore a federal environmental statute. Congress has not repealed or amended the statute.

Answer: The executive order is invalid. The President cannot direct agencies to disregard a valid statute. The “take care” clause requires faithful execution of all federal laws.

Exam Warning

The President’s enforcement discretion does not extend to suspending or refusing to enforce entire statutes. Blanket non-enforcement of a law is unconstitutional unless the law itself is invalid.

Revision Tip

On MBE questions, always check whether the President’s action is consistent with both the “take care” clause and any relevant statute. If Congress has clearly directed an action, the President must follow it unless the law is unconstitutional.

Key Point Checklist

This article has covered the following key knowledge points:

• The President’s duty to enforce federal law is mandatory under the “take care” clause.
• Executive discretion allows prioritization but not blanket refusal to enforce valid statutes.
• Executive orders cannot override or contradict federal statutes.
• Congress can require the President to act through clear statutory mandates.
• The judiciary may review executive non-enforcement in some cases.
• The President cannot impound funds or suspend enforcement of laws for policy reasons.

Key Terms and Concepts

• Take Care Clause
• Chief Executive Power
• Executive Order