Prof. Somin has reiterated his view that the President’s legal obligation to enforce the law—that is, “he shall take Care that the Laws be faithfully executed”—really basically allows the President to enforce or not enforce whatever laws he sees fit to enforce or not enforce. Somin insists he’s not actually saying this, but in substance it is what he’s saying. Let’s take a look.
First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.
That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.
The word “faithfully” is one of those words that gives moderns fits. It’s a normative term. It’s not a precise, mathematical kind of term like “35 years of age.” It’s more ambiguous, like “liberty” or “privileges or immunities” or “freedom of speech.” These terms are, of course, legal terms—constitutional terms—notwithstanding, and thus are the supreme law of the land. And while courts may be reluctant to enforce this provision, that does not mean it lacks status as law. Whatever might be the distinction between law and a “political norm” (norm—from nomos, meaning law—means a rule, and a political rule, a rule for politics, is a constitution), the Constitution itself makes clear that it is the supreme law of the land.
This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”