In a recent New York Times op-ed, Linda Greenhouse takes the Supreme Court justices to task for the “startling” action of asking the Obama administration to address whether its deferred-action immigration program violates the Take Care Clause of the Constitution.
The Take Care Clause is the president’s duty to “take Care that the Laws be faithfully executed.” And it has come to the forefront in the case brought by Texas and 25 other states challenging the Obama administration’s attempt to give legal status and work authorizations to more than four million illegal immigrants.
In “The Supreme Court vs. the President,” Greenhouse appears flabbergasted that the Supreme Court would ask such a question.
She first argues that the Supreme Court shouldn’t get involved in this constitutional question because the lower courts never addressed it.
This certainly wouldn’t be the first time the Supreme Court has considered an issue beyond the scope of the lower courts’ ruling. In Batson v. Kentucky (1986), the Supreme Court ruled that the Fourteenth Amendment’s Equal Protection Clause prohibits prosecutors from using peremptory challenges to strike potential jury members based on their race.
>>> To read more on this see: Executive Unbound: The Obama Administration’s Unilateral Actions.
Though Batson’s attorney objected to these strikes as violations of both the Equal Protection Clause and the Sixth Amendment, only the latter issue was pressed in the lower courts. The Supreme Court, nonetheless, saw things differently and decided the case on equal protection grounds (and in doing so, overruled a precedent).
Texas and the other states raised the Take Care Clause as Count One in their complaint: “This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.”
The states never waived the issue, pressing it at the appeals court and in their initial brief to the Supreme Court. In fact, they raise the Take Care Clause as alternative grounds for why they should win—contending that the “grants of lawful presence and work-permit eligibility are ‘measures incompatible with the expressed or implied will of Congress.’” As long as there is a live case or controversy, it is within the Court’s discretion to choose the grounds on which to rule.
Next, Greenhouse points out that the Court has “hardly ever addressed directly” the Take Care Clause—as though that’s reason enough for the justices never to do so.
Rarity or novelty shouldn’t—and doesn’t—stop the Court from considering meritorious cases. For example, the Court has rarely considered the Recess Appointments Clause. Yet when President Obama made four “recess” appointments while the Senate was not in recess, this forced the justices’ hands.
It was a novel issue, but the Supreme Court ruled 9-0 in NLRB v. Noel Canning (2014) that the president violated the Constitution. Likewise, the Supreme Court didn’t shy away from the Take Care Clause in a 1952 case informing President Truman that he couldn’t seize the nation’s steel mills to prevent a strike during wartime. In Youngstown Sheet & Tube Co. v. Sawyer, the Court wrote:
It is said that other Presidents without congressional authorization have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws.
Justice Robert Jackson explained in his concurring opinion that the Take Care Clause “gives a governmental authority that reaches so far as there is law.” Similarly, though the Obama administration claims that other presidents implemented deferred-action programs, that does not change the fact that Congress remains the lawmaker. And Congress has not chosen to grant status and benefits (to the tune of an estimated $324 million over the next three years) to illegal aliens.
Finally, Greenhouse trots out a 1992 decision written by Justice Antonin Scalia to show that the Take Care Clause “protect[s] a president’s prerogatives” and shouldn’t be used as a “sword” against the executive.
In Lujan v. Defenders of Wildlife, the Supreme Court held that environmental groups lacked standing to seek to enforce a provision of the Endangered Species Act. The majority opinion cites the Take Care Clause once, noting that Congress may not “transfer from the president to the courts the chief executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’”
Greenhouse is correct in saying the Supreme Court protected the president’s duty in Lujan. Sometimes the justices need to police the limits of the political branches’ powers.
Where we part company is her assertion that in the immigration case, the justices will turn the Take Care Clause “from shield to sword, with the conservative justices brandishing the sword.”
Contrary to what some more ambitious presidents would have us believe, this clause constrains the executive’s power.
The Take Care Clause charges the president with a duty—one that includes complying with statutory mandates, enforcing laws and regulations (including prosecuting lawbreakers), and defending the validity of laws in court. Contrary to what some more ambitious presidents would have us believe, this clause constrains the executive’s power.
Thus, the justices will not be employing the Take Care Clause as a “sword” if they find that Obama violated it. Though this clause remains a shield for the president’s actions when he is carrying out his duty, it does not allow him to hide behind the shield and duck for cover when he is not.
The Court may very likely decide this case on other grounds, following its practice of avoiding broad, constitutional issues when a narrower, statutory ground will suffice. But the justices would not be out of bounds if they police the limits of the separation of powers and find that Obama has violated the Take Care Clause.
Chief Justice John Marshall wrote in McCulloch v. Maryland (1819), “[T]he question respecting the extent of the powers actually granted [to the federal government] is perpetually arising, and will probably continue to arise, as long as our system shall exist.” It is well within the Supreme Court’s authority to decide whether the Constitution grants the president the power to rewrite the law when Congress won’t act.
Linda Greenhouse is wrong to claim that this case is about the Supreme Court vs. the President. In reality, it’s the President vs. the Constitution.
Join us this Thursday at Heritage for a panel discussion of Liberty’s Nemesis: The Unchecked Expansion of the State. This new book looks at the expansion of federal power under the Obama administration, chronicling the various overreaches such as the spotty enforcement of the new health care law, regulation of financial markets, and expansive environmental regulations, among others. A chapter by Linda Chavez looks at the deferred-action immigration program, concluding that President Obama’s “clear intent was to rebuke Congress for failing to act.”
