RUTHFULLY YOURS

On four separate occasions, President Obama swore that he would “faithfully execute the Office of President.” Yesterday, the Supreme Court told him to prove it. As expected, the justices voted to review Texas’s challenge to Obama’s executive action on immigration, known as DAPA (Deferred Action for Parents of Americans). Critically, the Court ordered the Obama administration to answer a pivotal question: Whether DAPA “violates the Take Care Clause of the Constitution.” In 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. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.

On November 20, 2014, President Obama announced DAPA. This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization. Two weeks later, Texas attorney general Greg Abbott (who had just been elected governor and would take office in January 2015) challenged DAPA in federal court in Brownsville. Two months later — and two days before the Department of Homeland Security would have begun accepting new applicants — Judge Andrew Hanen put DAPA on hold nationwide.

Judge Hanen found fatal the government’s failure to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). Because Hanen ruled on narrow grounds, the court did not need to address whether the president had failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” The case was then appealed to the Fifth Circuit Court of Appeals in New Orleans. In July, a divided court affirmed Judge Hanen’s ruling on administrative-law grounds. It, too, did not reach the constitutional question.

In November the United States appealed the case to the Supreme Court and asked the justices to consider two questions: First, whether Texas had suffered a sufficient injury to have standing to challenge DAPA in federal court; and second, whether DAPA complies with the APA. The government implored the Court to stay away from the constitutional question. In a footnote, the Justice Department wrote that “neither court below addressed” the “constitutional question,” which had “no independent content” — that is, the constitutional claim had no merit, and was not even worthy of consideration.

But Texas had a different plan. In its brief to the Supreme Court, Texas solicitor general Scott Keller invited the justices to consider an additional question: “Whether DAPA is contrary to law or violates the Constitution.” The justices took Keller’s offer and made it more specific. On Tuesday, the Court ordered that “the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the Constitution.’”

With this decision, the justices directed the president to justify DAPA and prove that his executive action on immigration is consistent with congressional design, not an effort to rewrite the law. Based on my initial research, this is the first time the Supreme Court has ever asked the president to state this constitutional case. Indeed, I could only locate three instances where the Court ruled against the executive branch, finding that the Take Care Clause limits its authority. (In different contexts, it has been cited to bolster the president’s power.)

First, in 1838, the justices invoked the clause to rein in a rogue postmaster general, originally appointed by President Andrew Jackson, who had chosen not to enforce a directive of Congress. In Kendall v. U.S. the Court ruled: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.” In other words, the executive branch cannot forbid the enforcement of the laws.

Second, in the landmark 1952 decision of Youngstown Sheet & Tube Co. v. Sawyer, the Court found that President Harry S. Truman lacked the authority to seize steel mills without congressional authorization. Justice Hugo Black concluded, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Truman’s unilateral actions violated the Take Care clause.

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Third is the Court’s 2008 decision in Medellin v. Texas, which was argued by then–Texas solicitor general Ted Cruz. In that case, the Court held that Congress had not yet not given President George W. Bush the statutory authority to enforce a treaty. Chief Justice Roberts, writing for a 6–3 majority, explained that this treaty could become binding only “through passage of legislation by both Houses of Congress,” not by the president’s unilateral action.

In neither Youngstown nor Medellin did the justices ask the president to prove that he was faithfully executing the laws (Kendall came to the Court on a writ of error, so there would not have been a question presented). Faced with an unprecedented expansion of executive powers, United States v. Texas is the first instance where the Supreme Court has put this burden on the president.

As I’ve explained elsewhere in a two-part series (Part I in the Georgetown Law Review Online and Part II in the Texas Review of Law & Politics), DAPA is not consistent with previous exercises of deferred action and constitutes an attempt to navigate around an uncooperative legislature. This pattern of behavior amounts to a deliberate decision not to act in good faith, but in an effort to undermine the Laws of Congress. The president’s duty under Article II has been violated.

Maybe the justices will agree with me, maybe they won’t. The mere fact that the Court asked the government to brief this question in no way suggests how it will rule. But at a minimum, the justices recognized that the resolution of this foundational case requires a full accounting of the separation of powers — including the president’s own testament. However the Court rules in this case, it will set a powerful precedent for presidents of both parties, who seek to rewrite the law without Congress. In 2016, the president of the United States will at last meet the Take Care clause.

— Josh Blackman is a constitutional-law professor at the South Texas College of Law and the author of the forthcoming Unraveled: Obamacare, Executive Power, and Religious Liberty. He blogs at JoshBlackman.com. He joined amicus briefs in United States v. Texas, supporting the states, on behalf of the Cato Institute.