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.

If the President’s duty to “take care” that laws are faithfully executed in part provides the basis for his authority to remove the principal officers who wield executive power on his behalf, a related question is whether such duty also entitles the President to substitute his own judgment for that of such principal officers regarding the discharge of such duty.1 Put another way, does the Take Care Clause allows Congress to vest, in a head of an executive department, certain discretion which the President is not entitled to control, such that the President’s only means of supervision is through the exercise of his removal authority?

An 1823 opinion rendered by Attorney General William Wirt asserted the proposition that the President’s duty under the Take Care Clause generally required him to do no more than exercise his removal authority when those subordinate officers failed to discharge their duty to execute the laws faithfully, including by removing them or by setting in motion against them the processes of impeachment or of criminal prosecutions.2

In its 1838 decision Kendall v. United States ex rel. Stokes,3 the Supreme Court agreed that the President’s Take Care duty does not foreclose the possibility that Congress may entrust the construction of its statutes to an executive officer other than the President. In that case, the United States owed several mail carriers, who had performed services under contract, money. When Postmaster General Amos Kendall, at President Andrew Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment.4 When Kendall continued to refuse to pay, the mail carriers sued and obtained a mandamus in the United States circuit court for the District of Columbia. The lower court concluded that the duty of the President under the Take Care Clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it.5

The Supreme Court affirmed, rejecting the argument every officer in the Executive Branch is under the exclusive direction of the President.6 The Court noted that while there are “certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President,” it would be “an alarming doctrine” to hold “that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution.” 7 In such cases, the Court continued, “the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President.” 8 This was especially the case, the Court added, “where the duty enjoined is of a mere ministerial character.” 9 In short, the Court recognized the underlying question of the case to be whether the President’s duty to “take Care that the Laws be faithfully executed” made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

Footnotes

1

For more information about the distinction between principal and inferior executive officers, see ArtII.S2.C2.3.11.1 Overview of Principal and Inferior Officers through ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and Inferior Officers.

2

1 Ops. Atty. Gen. 624 (1823). See also B. Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 231–32 (1903) (describing the case of the Jewels of the Princess of Orange, in which the King of the Netherlands requested the return of certain jewels belonging to the Princess of Orange that were allegedly illegally imported into the United States and later seized by officers of the United States Customs; then Attorney General Roger Taney expressed the view that while the President may order the District Attorney to discontinue a prosecution, the decision to comply resides with the District Attorney, and in the event he “still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law.” ).

3

37 U.S. (12 Pet.) 524 (1838).

4

See id. at 528.

5

See id. at 543.

6

See id. at 610.

7

Id.

8

Id.

9

Id.