Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Because the interpretation of law and its scope is a necessary prerequisite to any enforcement action, the precise scope of the President’s authority to “take Care that the laws be faithfully executed” is informed and shaped by this interpretive task. The power accruing to the President from such interpretations is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, and many other statutes.

Nor is this interpretive task the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Supreme Court’s reading of such statutes or of the Constitution,1 but in several early cases, the Supreme Court has suggested that the President can sometimes make law in a more special sense. In the famous Neagle case,2 an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be “a law of the United States” in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Samuel Miller inquired: “Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?” 3 The Court assumed an affirmative answer to the second branch of this inquiry, after noting several historical precedents.4 And, in United States v. Midwest Oil Co.,5 the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, particularly given that Congress had never repudiated the practice.6

Footnotes

1

United States v. Eliason, 41 U.S. (16 Pet.) 291, 301–02 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–81 (1886). For an analysis of the approach to determining the validity of presidential, or other executive, regulations and orders under purported congressional delegations or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301–16 (1979).

2

In re Neagle, 135 U.S. 1 (1890).

3

135 U.S. at 64. The phrase, “a law of the United States,” came from the Act of March 2, 1833, 4 Stat. 632. However, in the Act of June 25, 1948, 62 Stat. 965 (codified at 28 U.S.C. § 2241(c)(2)), the phrase is replaced by the term, “an act of Congress,” thereby eliminating the basis of the holding in Neagle.

4

Neagle, 135 U.S. at 64–65.

5

236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).

6

See Midwest Oil, 236 U.S. at 471–72.