Take Care Clause

Arguing that the Take Care Clause incorporates fiduciary duties that can justify administrative law doctrines and applying those doctrines to President Obama’s DAPA program and President Trump’s travel ban.

Highlighting the tension between the Supreme Court’s Take Care Clause doctrine and the original public meaning of the phrase.

Arguing that the framers believed the President has a duty to enforce all constitutionally valid acts of Congress.

Making a structural argument that the President has a strong incentive to use his Article II authority to ensure that federal courts retain jurisdiction over constitutional matters.

Pointing to the actions of the first administration as evidence that plenary executive recognition power in foreign affairs does not comport with originalism.

Arguing that plenary presidential authority over the removal of executive officials is incompatible with the original meaning of Article II.

Proposing that the text of the Constitution, particularly the Take Care Clause, places normative constraints on presidential power.

Arguing that the framers intended to instill a duty in executive officers to faithfully execute the law, which includes the duty to disobey illegal presidential directives.

Presenting textual, structural, and historical arguments to support the proposition that the Constitution requires the President to disregard statutes he believes are unconstitutional.

Arguing that, in light of the Constitution’s text, structure, and history, the President is the constitutional prosecutor of all federal offenses.

Proposing that Founding Era documents and debates point to the executive power as primarily giving the President the power to execute federal laws and to control governmental officers who execute federal law.

Examining the early history of qui tam litigation in America and the original understanding of the separation of powers doctrine to conclude that the qui tam provisions of the False Claims Act do not violate Article II.

Arguing that the framers did not believe the President had the power to disregard laws that he believed to be unconstitutional.

Proposing that the framers incorporated the “Chief Administrator theory” into the Constitution, whereby the President alone is accountable for executing federal law and has robust authority over his administration.

Arguing that evidence of historical practice from Common Law England through the Founding and for a century thereafter undermine the argument that the president has sole dominion over the interpretation and enforcement of criminal laws. 

Arguing that the text of the Constitution grants Congress the power to limit the President’s attempts to influence informal rulemaking.