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Faithful Execution: Where Administrative Law Meets the Constitution

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Faithful Execution: Where Administrative Law Meets the Constitution ARTICLES Faithful Execution: Where Administrative Law Meets the Constitution EVAN D. BERNICK* The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, fed- eral courts have been forced to confront important constitutional ques- tions concerning the President's exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations? This Article argues that the Take Care Clause of Article II, Section 3 constrains the President's administrative discretion and that judges are obliged to determine whether that discretion has been ªfaithfullyº exercised. It then constructs a faithful execution framework that judges can use to implement the ªletterºÐthe textÐand the ªspiritºÐthe functionsÐof the Take Care Clause. To that end, it makes use of a theory of ®duciary government that informed the content and structure of the Take Care Clause and draws upon well-established administra- tive law doctrines. It uses the faithful execution framework to evaluate President Barack Obama's 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump's 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitu- tionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism. TABLE OF CONTENTS INTRODUCTION ..................................................... 3 * Visiting Lecturer, Georgetown University Law Center; Fellow, Georgetown Center for the Constitution. © 2019, Evan D. Bernick. Thanks are due to Randy Barnett, Jennifer Nou, Larry Solum, Greg Klass, Robin West, Richard Re, and participants in the Georgetown Fellows Collaborative for their comments and suggestions, and to William Yeatman for his research assistance. 1 2 THE GEORGETOWN LAW JOURNAL [Vol. 108:1 I. THE IMPORTANCE OF THE TAKE CARE CLAUSE: THE NEED FOR A THEORY AND A FRAMEWORK .................................... 7 A. THE TAKE CARE CLAUSE IN CONSTITUTIONAL CULTURE. 8 B. THE TAKE CARE CLAUSE IN THE COURTS ...................... 10 C. RECENT CONTROVERSIES ................................... 14 1. President Obama's DAPA Program . 14 2. President Trump's Travel Bans .................... 16 II. GOOD-FAITH CONSTITUTIONALISM AND THE LETTER AND SPIRIT OF THE TAKE CARE CLAUSE ........................................... 19 A. CONSTITUTIONAL DECISIONMAKERS AS FIDUCIARIES . 19 B. INTERPRETING THE TAKE CARE CLAUSE ....................... 25 1. Historical Context .............................. 25 2. Text ..... ................................... 28 a. ªHe shall.º ............................... 29 b. ªTake Care.º .............................. 31 c. ªThe Laws.º............................... 32 d. ªBe Faithfully Executed.º .................... 33 e. ªHe Shall Take Care That the Laws Be Faithfully Executed.º ................................ 36 f. Judicial Enforcement ........................ 36 3. Contexts for Caretaking.......................... 37 a. Deciding Whether to Implement Statutes. 37 b. Deciding How to Implement Statutes . 38 c. Supervising the Implementation of Statutes. 40 C. IMPLEMENTING THE TAKE CARE CLAUSE ...................... 40 1. Ensuring Presidential Accountability. 41 2. Facilitating Bounded Discretion ..... 42 3. Securing the Rule of Law . ....................... 42 2019] FAITHFUL EXECUTION 3 4. Thwarting Opportunism ......................... 43 III. ENFORCING FAITHFUL EXECUTION ................................ 44 A. OUR FIDUCIARY ADMINISTRATIVE LAW........................ 45 1. The Chenery Principle........................... 45 2. The Heckler Presumption ............ 46 3. Hard-Look Review ............ 48 B. TOWARD FIDUCIARY PRESIDENTIAL ADMINISTRATION . 50 1. Modifying the Chenery Principle. 50 2. Modifying the Heckler Presumption ............ 53 3. Modifying Hard-Look Review........... 54 IV. APPLYING FAITHFUL EXECUTION ................................. 57 A. DAPA .................................................. 57 B. THE TRAVEL BANS ........................................ 61 V. OBJECTIONS .................................................. 66 A. FIDUCIARY PRESIDENTIAL ADMINISTRATION IS UNWORKABLE . 66 B. ORDINARY ADMINISTRATIVE LAW IS NOTÐAND SHOULD NOT BEÐ APPLICABLE TO THE PRESIDENT.............................. 68 C. DESPERATE TIMES REQUIRE JUDICIAL DEFERENCE . 70 CONCLUSION ...................................................... 71 Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution?1 INTRODUCTION The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than anything set forth in the text of the Constitution of the United States.2 In recent 1. Letter from William Symmes to Captain Peter Osgood, Jr. (Nov. 15, 1787), in 4 THE COMPLETE ANTI-FEDERALIST 54, 60 (Herbert J. Storing & Murray Dry eds., 1981) [hereinafter Letter from William Symmes]. 2. See, e.g., Emily S. Bremer, The Unwritten Administrative Constitution, 66 FLA. L. REV. 1215, 1218 (2014) (arguing that ªadministrative law has evolved into an unwritten constitution that governs 4 THE GEORGETOWN LAW JOURNAL [Vol. 108:1 years, however, the Supreme Court has been forced to confront constitutional questions concerning the President's exercise of administrative discretion under broadly worded federal statutesÐadministrative discretion that may implicate Article II, Section 3, which provides that ª[the President] shall take Care that the Laws be faithfully executed.º3 The questions: (1) Does the Take Care Clause impose any independent constraints on the President's administrative discretion? (2) If so, should judges determine whether that discretion has been ªfaithfullyº exercised? and (3) How should judges make such determinations? This Article argues that the Take Care Clause does impose independent con- straints on the President's administrative discretion and that judges ought to determine whether that administrative discretion has been faithfully exercised. It then provides a framework that judges can use to make such determinations. In constructing that framework, it draws upon existing administrative law doctrines that are consistent with the original functions of the Take Care Clause. Part I canvasses notable invocations of the Take Care Clause over the years by presidents, legislators, and concerned citizens, and it summarizes the treatment of the Take Care Clause by the Supreme Court. It then focuses attention on two highly visible and controversial sets of presidential decisions that may implicate the Take Care Clause.4 The ®rst set: President Barack Obama's 2014 executive actions establishing the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).5 The second set: President the administrative power not contemplated by the U.S. Constitutionº); Jerry L. Mashaw, Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?, 45 WILLAMETTE L. REV. 659, 660 (2009) (averring that there is a ªhole in the Constitution where administration might have beenº); Mila Sohoni, A BureaucracyÐIf You Can Keep It, 131 HARV. L. REV. F. 13, 20 (2017) (stating that the ªadministrative constitution is rooted in the enactment of . statutesÐmost importantly the APAÐand in the meaning and conventions encrusted around those statutes by agency practice and judicial elaborationº (footnote omitted)). But see Gillian E. Metzger, The Supreme Court, 2016 TermÐ Foreword: 1930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. 1, 87±95 (2017) (arguing that central features of the administrative state and administrative law are constitutionally required). As Sohoni notes, Metzger's arguments ªdiverge[] in critical respects from long-held conceptions of the administrative state's constitutional status and role.º Sohoni, supra, at 13. 3. U.S. CONST. art. II, § 3. 4. These are not the only recent presidential actions that arguably implicate the Take Care Clause. For an argument that the Trump Administration's refusal to enforce the individual mandate and other provisions of the Affordable Care Act violates the Take Care Clause, see Nicholas Bagley & Abbe R. Gluck, Trump's Sabotage of Obamacare Is Illegal, N.Y. TIMES (Aug. 14, 2018), https://www.nytimes.com/2018/08/14/opinion/trump-obamacare-illegal.html. See also Complaint at 5, City of Columbus v. Trump, No. 18-cv-2364 (D. Md. Aug. 2, 2018) (alleging that the President ªneglect[ed] to faithfully implement the ACA and af®rmatively [took] numerous executive actions to sabotage itº). 5. See Memorandum from Jeh Charles Johnson, Sec'y, U.S. Dep't of Homeland Sec., to LeoÂn Rodriguez, Dir., U.S. Citizenship and Immigration Servs., et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals
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