Wednesday, January 20, 2016

Asked and Answered: The Take Care Clause issue in U.S. v. Texas

Guest Blogger

Neil Kinkopf

As Marty has noted, yesterday the Supreme Court granted certiorari in the DAPA case, and generated headlines by adding an additional question:  “Whether the Guidance violates the Take Care Clause of the Constitution.”  Texas's constitutional argument is that: (i) the Secretary of the Department of Homeland Security's DAPA Guidance--and the work authorization conferred upon DAPA aliens, in particular--exceeds the authority granted in the relevant immigration statutes; (ii) A President who exceeds his constitutional authority violates the constitutional duty to “take care that the laws be faithfully executed”; and thus, (iii) a President who exceeds his statutory powers violates the Constitution. 

Putting aside the fact that the Guidance was not issued by the President, this argument would appear, at first glance, to be a forceful one.  I used to think it true, in fact.  But Marty's right:  There's no distinct constitutional question here--it's merely an ordinary dispute about the interpretation of statutory law.  And what no one seems to have noticed is that the Supreme Court has already held as much.  

In Dalton v. Specter, the Supreme Court held that President George H.W. Bush’s order closing a military base was not subject to judicial review.  Senator Arlen Specter and others challenging the order claimed that the President had exceeded his statutory authority.  The Supreme Court held that the President’s order was not reviewable under the Administrative Procedure Act because the President is not an agency for APA purposes.  The case establishing this proposition, Franklin v. Massachusetts, had recognized a sort of exception:  judicial review would be available when presidential actions are challenged as unconstitutional.  Senator Specter argued that President Bush’s base closure order was issued outside his legitimate statutory authority and therefore was unconstitutional.  Sound familiar?  This is precisely the argument that Texas is making that the DAPA Guidance is unconstitutional:  Because it allegedly goes beyond what Congress has authorized the Secretary to do, it is said to violate the Take Care Clause.  Here is what Chief Justice Rehnquist wrote for the Court in Dalton, in response to the argument when Senator Specter raised it:
… [C]laims simply alleging that the President has exceeded his statutory authority are not "constitutional" claims, subject to judicial review under the exception recognized in Franklin.[n.6]  As this case demonstrates, if every claim alleging that the President exceeded his statutory authority were considered a constitutional claim, the exception identified in Franklin would be broadened beyond recognition. The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.
Footnote 6 reads:  “As one commentator has observed, in cases in which the President concedes, either implicitly or explicitly, that the only source of his authority is statutory, no ‘constitutional question whatever’ is raised. J. Choper, Judicial Review and the National Political Process 316 (1980).  Rather, ‘the cases concern only issues of statutory interpretation.’ Ibid.” 

United States v. Texas is just such a case.  It involves the question whether the DAPA order exceeds the limits of the authorities that the immigration statutes vest in the Secretary of Homeland Security.  Neither the Take Care Clause nor any other constitutional provision tells us anything about what the content of those limits might be.  Dalton teaches that the President has not violated the Constitution, even if it turns out that he, or one of his appointees, was mistaken about the extent of statutory power.    

Neil Kinkopf is Professor of Law at Georgia State University College of Law. You can reach him by e-mail at nkinkopf at

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