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Article II, Section 3 of the U.S. Constitution includes the so-called “faithful execution clause”. It provides that the President of the United States “shall take Care that the Laws be faithfully executed, …”. It is a Constitutional clause that has had minimal interpretation, and then mostly as a check on Presidential power usurping or ignoring constitutional laws passed by Congress.

The United States is a nation of laws, but initially the judicial branch was the weakest of the three branches. The scope of “Executive Power” has been unresolved since the founding of our Republic. The Vesting Clause of Article II, Section 1 of the Constitution arguably grants the President inherent “executive” powers that are not enumerated in the Constitution. Use of executive orders by the Presidents have been wide ranging and political. President Lincoln’s Emancipation Proclamation was an Executive order.

There is a long history of independent Executive branch authority in matters of foreign affairs beyond the enumerated powers shared with Congress under the Constitution or implied through the “necessary and proper clause” with respect to domestic authority. The Supreme Court reviewed some of this history in Justice Sutherland’s opinion in the 1936 case United States v. Curtiss-Wright Export Corp. (See 299 U.S.  304, 318-19). In that case under a Joint Resolution of Congress the President could order an arms embargo on exports from the U.S. to states involved in certain armed conflicts. The Bush administration used such inherent authority to detain alleged supporters of international terrorism (and for warrantless searches in the U.S. for foreign intelligence purposes). The Court never addressed the latter in the context of judicial interpretation of such executive orders under international law to which the U.S. is subject.

Presidential authority even in time of war has not gone unchecked. President Truman’s attempt to seize steel mills to avert a labor strike that would have interfered with the Korean War effort was rebuffed by the Supreme Court in Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 539) (1952).

The leeway granted the President to act unilaterally under the Faithful Execution clause depends on whether the President’s action or omission is ministerial in nature or discretionary. The clause has been interpreted most often in the context of ministerial acts under statutory law. President Obama’s Executive Order to not enforce the removal provisions of the Immigration and Nationality Act against certain individuals in the U.S. illegally, was overturned by the Court. Executive orders made by the President under executive discretion over foreign affairs have tended to invite less judicial review. The judicial branch tends to avoid political questions particularly if related to foreign affairs, in times of real or perceived crisis.

The President’s recent Executive Order temporarily banning immigration from certain predominantly Muslim countries that were already subject to enhanced individual immigration review, could raise an expansive interpretation of the Faithful Execution clause by seeking removal of judicial scrutiny based on the President’s inherent residual authority over foreign affairs. Such unilateral Presidential power would not be limited to immigration issues. This Executive Order was unusual because Presidents revert to such powers when Congress is averse to them.  Although it may be considered a mistake of a new Administration both in terms of execution and policy, it likely will be pursued either as a distraction or to expand Presidential authority where Congress has for generations ceded the field.

“The drafting history of the Take Care Clause at the Philadelphia Convention supports the natural reading that the text imposes a duty and a constraint. James Wilson, later an Associate Justice of the Supreme Court, introduced a draft dealing with the Executive that read in part: “It shall be his duty to provide for the due & faithful exec—of the laws.”121 The Committee of Detail altered this draft to read: “he shall take care that the laws of the United States be duly and faithfully executed.”122 The Committee on Style simplified that version, drafting the final form of the Clause: “he shall take care that the laws be faithfully executed.”123 Years after the Convention, Wilson explained that the Clause meant that the President has “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which [are] established.” (see  https://www.law.yale.edu/system/files/area/conference/ilroundtable/ILR13_CDDavidDelahuntyJohnYoo.pdf )

This indication of legislative history undercuts any use of Executive Order to “make” law under the authority of the Faithful Execution clause. Constitutional construction, by activists and non-activists alike ebbs and flows. Should this this recent challenge to President Trump’s Executive Order get on to the  Supreme Court’s docket when the Court has 9 members it could present an interesting case. Given the timing, it is probably unlikely. Unless there is a conflict between the Circuits, the 9th Circuit’s ruling will likely go unchallenged as it would be upheld if the Supreme Court splits.

From a political and practical standpoint, it is unclear to me why this Executive Order has not been rescinded by the Trump Administration and then rewritten. Obstinacy in the face of practicality is not a virtue regardless of political persuasion.