The “Take Care Clause” and Obama’s DOMA Decision

The so-called “Take Care Clause” of Article II commands the President to “take care that the laws be faithfully executed.”  Whether this counts as an “odd clause” depends on what one’s definition of “odd” is, an issue that I hope to discuss at length on this blog as things move along.  Using the definition of “odd” that I use in my book, the Take Care Clause would not count as odd (it’s not quirkily specific enough) but for purposes of this blog, where I will use a broad approach to what counts as “odd,” I think it is.  For one thing, it’s not a clause that makes it to court all that often (although next week I’ll post on a recent case about it).  I also don’t think that the average person on the street would be able to name it or know what it says or anything like that.  So, it’s odd enough for this blog.

Of course earlier in the week, President Obama announced that his Administration will no longer defend the Defense of Marriage Act in the courts, although it will continue to enforce the law.  Of course, this announcement has sparked a blogorama of commentary, some of which focuses on whether the President has the authority to decide not to defend laws he believes are unconstitutional, or whether this kind of decision violates the Take Care Clause.

It’s quite clear that the President, who after all takes an oath to uphold the Constitution, can refuse to defend or even enforce laws that he genuinely believes are unconstitutional.  He may even have the obligation to do these things.  A President who decides to enforce and defend a law that he genuinely believes is unconstitutional arguably violates his oath of office to uphold and protect the Constitution.  The executive branch has long held to this view–I remember it well from my own time at the Office of Legal Counsel.  If you’re interested in some very good legal analysis about the issue, I commend the following two links: a discussion of signing statements issued jointly by a number of OLC lawyers, some of whom (like David Barron and Marty Lederman) have played significant roles in the Obama OLC; and a memo from former OLC head Walter Dellinger to White House Counsel Abner Mikva about the President’s authority to decline to enforce unconstitutional laws.  (note that the issue of signing statements is directly applicable to the question at hand, because Obama has essentially issued the equivalent of a signing statement with his decision–it just wasn’t done at the time the bill was enacted).

So, the President’s authority to refuse to defend DOMA is firmly rooted in constitutional text and history.  There are some separate prudential and political questions, however, about exactly when a President should announce that he will not enforce or defend a law. Declining to defend or enforce a law may prove to be politically harmful, for instance.  Moreover, if one President decides not to enforce a law today, some other President might use that as precedent to decide not to enforce some different law later on.  Today it might be DOMA that doesn’t get defended; in the Palin Administration it might be the health care bill or the Endangered Species Act.  Still, though, that’s a separate question than the one of constitutional authority, which turns out to be pretty straightforward.

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Filed under Office of Legal Counsel, Take Care Clause, What makes a clause "odd"?

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