The President as Law Enforcer

One of the most important responsibilities of the President of the United States is to ensure that the laws are "faithfully executed". This means they must ensure existing laws and the Constitution are upheld.

At first glance, the clause makes the president a top-level law enforcer. However, the president doesn't execute the laws. Instead, they must ensure that their subordinates execute the laws faithfully.

This article describes Article II, Section 3's requirement that the president faithfully execute the laws. It starts by outlining the text and detailing the enumerated powers and duties of the executive branch. It then provides the modern interpretation of the so-called "take care clause."

Executive Powers and Duties

Article II of the U.S. Constitution enumerates the executive duty and powers of the president. The president's express powers include the following (among others):

• Act as commander in chief of the United States of America's armed forces (e.g., the Army, Navy, and Air Force)

• Enter into treaties with foreign nations (subject to congressional approval)

• Appoint executive officers

• Nominate other officials, like federal judges and the U.S. Attorney General

• Pardon people who have committed federal offenses against the United States

• Fill vacancies when the Senate is in recess

The Chief Executive possesses implied powers as well. While the United States Constitution does not explicitly state these powers, presidents have historically exercised them to take necessary actions. Read FindLaw's article on Implied Executive Powers for more information.

The federal government consists of the executive, judicial, and legislative branches. The Framers, including Alexander Hamilton, Thomas Jefferson, and George Washington, created a separation of powers structure. This structure gives each branch a series of checks and balances on the other branches.

For example, the legislature has the following checks on the president:

• Although the president is commander in chief, Congress controls funding for the military. 

• The president can nominate federal judges. However, the Senate must confirm the nominations before they take effect.

• Congress can remove the president through the impeachment process. The House of Representatives must vote on whether to impeach them. If the vote passes, the Senate will vote on whether to convict them. The bases for impeachment include treason, bribery, or "high Crimes and Misdemeanors."

Read FindLaw's overview article, Article II - The Executive Branch, for more information about Article II.

Article II, Section 3 - Presidential Duties

Article II, Section 3 of the U.S. Constitution specifies the president's many duties. It states the following:

“He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

The take care clause is the part of Section 3 that states, "he shall take Care that the Laws be faithfully executed."

The clause appears to be a relatively straightforward duty entrusted to the president. However, legal scholars have discussed and debated the take care clause extensively.

The "Take Care Clause" Explained

As the Constitution Annotated notes, the take care clause "potentially implicates" five executive powers as follows:

• The Constitution's enumerated powers in the "opening and succeeding clauses of Article II"

• Acts of Congress that give powers to the president

• Acts of Congress that give powers to heads of departments and other executive branch or administrative agencies

• Powers that arise "implicitly from the duty to enforce the criminal statutes of the United States"

• Executive officers' powers to carry out "ministerial duties" within their limited discretion

Although the text of the take care clause "seemingly invests the office with broad enforcement authority," it also limits the executive's power. As the Constitution Annotated notes, the clause "underscores that the executive is under a duty to execute the laws of Congress faithfully and not disregard them."

The modern interpretation of the take care clause is that the president is not solely responsible for ensuring the faithful execution of the laws. In other words, the president is not required to personally ensure the faithful execution of the laws.

Presidents have a general duty to supervise executive departments. However, realistically, they cannot personally supervise each one. As the Supreme Court noted in 1843, requiring the president to do so would be "impossible." The Court further noted that the president cannot be required to personally perform "the numerous details incident to services" that the Constitution or federal laws may require.

Instead, the president can typically assign responsibility to the heads of the various executive departments. When the department heads act lawfully, the president is attributed to the act.

Congress can also "entrust the construction of its statutes to an executive officer other than the president." Department heads typically have the authority to implement orders or instructions as they see fit.

The Supreme Court has justified this interpretation by noting that the president can remove executive officers if they abuse their discretion. (Myers v. United States (1926)). The removal power, therefore, is how the president supervises the executive departments. If the department heads fail to execute the laws faithfully, the president may remove them.

To summarize, the president does not personally execute the law. Instead, their subordinates in the executive branch do. The president's power to remove—and thereby supervise—any subordinates wielding executive power means the president does not have to ensure each department faithfully executes the laws personally. Requiring the president to supervise the day-to-day activities of each department is unrealistic.

Congress can also entrust executive power to executive officers, who have discretion to wield the power as they see fit as long as they do so lawfully. If the department head acts unlawfully, the president can remove them from office. Through that power, the president can control the officers and ensure faithful execution of the law.