Prof. Somin has reiterated his view that the President’s legal obligation to enforce the law—that is, “he shall take Care that the Laws be faithfully executed”—really basically allows the President to enforce or not enforce whatever laws he sees fit to enforce or not enforce. Somin insists he’s not actually saying this, but in substance it is what he’s saying. Let’s take a look.
First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.
That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.
The word “faithfully” is one of those words that gives moderns fits. It’s a normative term. It’s not a precise, mathematical kind of term like “35 years of age.” It’s more ambiguous, like “liberty” or “privileges or immunities” or “freedom of speech.” These terms are, of course, legal terms—constitutional terms—notwithstanding, and thus are the supreme law of the land. And while courts may be reluctant to enforce this provision, that does not mean it lacks status as law. Whatever might be the distinction between law and a “political norm” (norm—from nomos, meaning law—means a rule, and a political rule, a rule for politics, is a constitution), the Constitution itself makes clear that it is the supreme law of the land.
This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”
There is no other reason for this constitutional sentence except to prohibit the President from choosing to suspend the enforcement of duly enacted laws—and if you were going to write a constitutional provision to prohibit the President from refusing to enforce the laws, and wanted to write that provision in the strongest possible terms, you would use exactly the language this provision uses. You would mandate in the strongest language of the Constitution, that the President take care faithfully to execute the laws.
Justice Story explains: “The great object of the establishment of the executive department is, to accomplish…a faithful execution of the laws…. The true interpretation of the clause is, that the President is to use all such means as the Constitution and laws have placed at his disposal to enforce the due execution of the laws. As, for example, if crimes are committed, he is to direct a prosecution by the proper public officers, and see, that the offenders are brought to justice.” Familiar Exposition, §292.
There is thus not only no basis in the Constitution for concluding that the President may decide upon a policy of refusing to enforce the law simply because he disagrees with it, but such a proposition is obviously contrary to the spirit, and to the plainest possible letter, of the Constitution.
What are Prof. Somin’s reasons for saying that Pres. Obama’s decision not to enforce the law because he doesn’t like the law is “well within the scope of executive authority under the Constitution”? His answer is that because a President and his deputies have limited resources and must therefore prioritize what crimes to punish, they inevitably leave some crimes unpunished, and this is no different from that.
Of course, it is completely different—and the difference lies in the word that Prof. Somin essentially ignores: “faithfully.” A President who tries, but is unable, to prosecute all crimes because of his limited resources is not acting unfaithfully—he’s doing his best, but can’t do everything. Nobody would contend, and nobody has contended, that the President is untrue to his obligations in such cases. But where the President chooses not to enforce a law for a corrupt reason—for an unfaithful reason—he does violate his oath.
Consider: a President chooses not to prosecute his bestest buddy for committing a serious crime, simply because he’s the guy’s bestest buddy. Then he says, “Well, I have limited resources. I can’t possibly prosecute everything. I have to pick some crimes to let slide. So I decided to let my bestest buddy’s slide.” Or suppose the President is bribed not to prosecute. Could he excuse his acts on the basis of “prosectorial discretion”?
Of course not, and Prof. Somin senses that this is the direction he’s going, so he denies that he’s really arguing that. He says that a president who uses his power simply to harass the innocent or to prosecute people “based on personal animus towards the accused,” or who decrees that someone has “not violated the law at all, thereby precluding future presidents from going after the perpetrators,” or who “use[s] his discretion in ways that threaten individual rights protected by the Constitution,” would be violating the Constitution. But why? Somin never explains why these would cross the line, while a President choosing not to enforce the law because he doesn’t like that law would not be.
One assumes it’s because Prof. Somin (rightly) sees such things as unfaithful. But if it’s unfaithful to prosecute someone based on personal animus, it is equally unfaithful to not prosecute someone based on personal approval—or to not prosecute someone based on animus toward the law the person has violated. Why is it unfaithful to simply proclaim that someone hasn’t violated the law at all, so as to prevent future prosecution, but not unfaithful to refuse to enforce the law now, thus preventing prosecution now, and possibly in the future, for the purpose of obstructing the due administration of the law, which is what Pres. Obama is doing? Prof. Somin gives us no answer. He says that the President “cannot choose which offenders to prosecute based on the race, sex, religion, or political views of the potential defendants,” because apparently this would be “unfaithful.” Yet he says that the President can choose which offenders not to prosecute, based on similar factors—based on his own sense of compassion, identity politics, and personal policy preferences. Why is one okay and one not? Again, Prof. Somin gives no answer.
Thus he gives us a rule: that because “presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore,” they may do so out of personal disapproval of the law in question—and then given us a list of ad hoc exceptions from this rule, with no explanation as to why these are exceptions. They are therefore not true exceptions, but mere paper disclaimers, and do not refute the objection that Somin is contending that the President may either take care that the laws be faithfully exceuted...or not. Whatevs. Nor has he explained how his rule—that a president can make a “policy choice” not to enforce the law because he doesn’t like it—is consistent with the word “faithfully,” let alone with long history of this constitutional provision. Thus, notwithstanding his protestations to the contrary, Professor Somin, like Professor Obama, has read the word “faithfully” out of the Constitution.
To say that the law must not mean what it says, because it has been so often violated in the past, and cannot practicably be enforced in every instance, is nothing short of an argument against law itself. To jump from the idea of practical judgment—that one must inevitably choose which laws to enforce because one can’t afford to enforce them all—to the idea that the law can be ignored wholesale because one does not like it—simply is an argument against the rule of law. To argue that there is no principled distinction between a prudent use of executive resources and a purposeful policy of violating the law of the land and the oath of office is obviously fallacious. To interpret a constitutional provision that commands the President to “take Care that the Laws be faithfully executed” as meaning that the President need not take any care to faithfully execute any law, depending solely on his own policy preferences, is to conclude that the supreme law of the land does not say what it plainly does say, in the strongest words which the English language possesses.
*-Compare the Clause with the language in Art. VI: “This Constitution...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This language is arguably less emphatic even than the Take Care Clause, in that it uses the words “shall be bound” and “anything to the contrary notwithstanding,” but does not mandate that judges actually do anything—whereas the Take Care Clause requires the President to take affirmative steps: it requires that he take care.
Update: Prof. Somin has added a brief update to his VC post to answer me, but nowhere tries to address the meaning of the word "faithfully," which is the point in dispute. He does say that this isn't about "suspending" the laws, because "suspending" the laws would only occur if the President prohibited future prosecutions. I don't think that's so. The prohibitions on "suspension" in the Virginia Bill of Rights and the 1689 Bill of Rights that I've quoted above were largely inspired by the King issuing patents to bar application of the Test Oath. Those didn't prohibit future prosecutions. They just suspended the application of the laws. (Royal courts held this to be constitutional, which is why the Bill of Rights was necessary.) Thus prohibitions on future prosecution aren't synonymous with illegal suspension of the law, nor the sine qua non of faithlessness under our Constitution.
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