an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Two more reasons why the "Take Care" argument in the DAPA case is a non-issue
As you probably know by now, yesterday the Court granted the government's petition to hear the DAPA case, No. 15-674, Texas v. United States. It will be argued sometime between April 18th and 27th. In its order granting cert., the Court directed the parties to brief and argue the following question, in addition to those presented in the government's petition: “Whether the [DAPA] Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” The Article II clause provides that the President "shall take Care that the Laws be faithfully executed."
This additional question is hardly "stunning," let alone a "bombshell." In its nominal brief in opposition, Texas had proposed amending the Questions Presented to include "[w]hether DAPA . . . violates the Constitution." The Court has now granted Texas's request, thereby signaling to the State that it is free to make a constitutional argument if it wishes to do so, even though the court of appeals did not reach that argument. Adding that "question" ensures that the Court will resolve the entire case this June, without leaving any issue dangling that the lower courts might use to revive the case in the event the Court rules in favor of the government.
As I've explained in earlierposts, however, there's nothing to the Take Care argument.
Texas's nominal constitutional argument (as stated in its brief in opposition) is that DAPA is "'incompatible with the expressed or implied will of Congress,' where the '[President’s] power is at its lowest ebb'” (quoting from "Category 3" of Justice Jackson's celebrated Youngstown concurrence), because authorizing DAPA aliens to be employed is--according to Texas--"directly contrary to Congress’s will as expressed in the INA’s reticulated work authorization scheme."
But if the DHS Secretary's interpretation of the immigration laws--that they authorize him to afford the work authorization at issue here--is incorrect, as Texas alleges, that would simply mean that there's merit to Texas's side of an ordinary statutory interpretation dispute. There is no independent constitutional issue in the case--at least, no more so than there is whenever anyone challenges the executive's interpretation of its statutory authorities, something that occurs every day. The Secretary here purports to act pursuant to statutorily delegated discretion, relying upon a determination that the Reagan Administration made, after notice and comment, back in the 1980's. Texas, by contrast, denies that Congress has conferred such authority--it insists that the agency has been acting upon an improper reading of the statute for more than 30 years. And thus what is at stake is simply a question of statutory interpretation, about the nature and scope of the discretion that Congress has conferred upon the Secretary of DHS. Dressing this up as a "Take Care" argument does not change it, or shed any further light on it. [UPDATE: My former OLC colleague Neil Kinkopf adds the important point that the Supreme Court itself has already held, in Dalton v. Specter, that "claims simply alleging that the President has exceeded his statutory authority are not 'constitutional' claims"; that "[t]he 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 . . . well established . . . "; and that "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" (quoting J. Choper, Judicial Review and the National Political Process 316 (1980)).]
Indeed, this is not even a case in which the President or the Secretary of DHS are invoking any constitutional authority to act, let alone an authority to override or disregard statutes (which is what Youngstown "Category 3" is all about). Even in that sort of case--such as Zivotofsky--the question is simply whether the President has the constitutional authority to contravene a statute, not whether he has violated his "take Care" obligation. But this dispute, about the powers Congress has conferred upon the Secretary pursuant to the immigration laws, doesn't even raise that sort of Article II question, let alone a question about the Take Care Clause.
There's good reason why "[i]n 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed," and why none of the hundreds or thousands of previous cases challenging the authority of agency actions have discussed the Take Care clause--namely, because that clause is inapposite.
What would a "true" Take Care Clause case look like? Hard to say. Perhaps the President would violate his constitutional duty if he deliberately ignored blatant lawbreaking by a federal official. Or if he asserted a "dispensation" power that has been understood to be inadmissible since at least the Court's 1838 decision in Kendall v. United States.Or if he decided to act in a way (or directed an official to do so) that he concluded would violate the law--say, on the theory that a national emergency or exigency justified civil disobedience. (There aren't many such examples in our history--the most famous might be Jefferson's decision to ratify the Louisiana Purchase, and to sign legislation to pay for that deal, after he had privately concluded that it was unconstitutional.) These sorts of cases against the President probably would not be justiciable on constitutional grounds. But at least they would raise genuine Take Care questions within the Executive branch.
We have nothing like that here, in the Texas immigration case. Nor is this a case in the President has made a "deliberate decision not to act in good faith, . . . in an effort to undermine the Laws of Congress." Say what you will about the merits of the DAPA policy; but there's absolutely no reason to think that the President and Secretary do not believe, in good faith, that the Secretary has the statutory authority to implement it, along with the work authorization that is the heart of the case. Indeed, I think the Secretary has much the better of the argument, which is based on a regulation more than 30 years old.
Wholly apart from all that, however, there are two further reasons why the "Take Care" argument is a red herring here.
First of all, as my discussion above suggests, the Clause imposes a duty upon the President. But here, Congress has conferred the statutory authority in question upon the Secretary of DHS, Jeh Johnson, not upon the President; and it is Johnson's actions, not the President's, that are at issue in the case. (President Obama does, of course, approve of Johnson's actions; and it wouldn't be at all surprising if he encouraged Johnson to do what was within his authority. But he did not make the decision. Johnson, not the President, issued the "guidance" to which the Court's Question refers.) Of course, Johnson, like all federal officials, has an obligation to act in accord with the laws enacted by Congress; indeed, he's taken an oath to do so. (And he asserts he has complied with the statutes.) But he does not have a constitutional obligation to take care that the laws are faithfully executed by all executive branch officials--that's a duty the Constitution imposes upon the President, who took no formal actions here with respect to DAPA.
Second, the Court will not, in any event, have any reason to reach the so-called "take Care" question. If it rules that Texas has standing, and that the Secretary lacks the statutory authority to confer "deferred action" status and/or work authorization to the class of aliens in question, then the case will be over, without resort to Texas's constitutional claim: the government will not be able to implement DAPA. But if, on the other hand, the Court rules that the Secretary has acted within his statutorily conferred authority, then the laws will have been properly executed, which would preclude the predicate for Texas's "take Care" argument. (And, of course, if the Court holds that Texas lacks standing, it won't reach any of the merits questions, let alone this one.)