“Faithful Execution” and Presidential Power, forthcoming 2019

Andrew Kent, Ethan Leib and I will be publishing this paper, “‘Faithful Execution’ and Article II” in the Harvard Law Review this spring. We explored for the first time the deep and overlooked historical origins of the two “faithful execution” clauses of the Constitution – in the Take Care clause and in the Presidential Oath – through centuries of English and colonial American usage for officers, up through the Convention and Ratification Debates. These clauses are cited by many to support expansive presidential power, but in historical context, their original meaning was to limit presidential discretion with duties of care, loyalty, diligence, and good faith that closely resemble modern fiduciary duties.

The article has implications for many presidential powers that have become relevant in recent years (and not just for Trump, but also for Clinton, Bush, and Obama, too). For example, the duty of faithful execution would limit the pardon power, the firing/removal power, the power to suspend and not to execute statutes, and the abuse of power to self-deal. This historical evidence also may suggest that modern private fiduciary duties emerged from English statutes imposing duties of care and loyalty on public officials.

The full paper is linked above. The abstract is below. An earlier Washington Post op-ed from last March more concisely set out an earlier suggestion of these historical links, but this research alters that hypothesis with deeper research.

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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