The Take Care Clause Was Written Against Kings Who Suspended the Laws

A king who dislikes a law has two easy options. He can declare that the law is suspended for everyone, or he can grant a favored subject a personal exemption from it. Either way the law stays on the books, looking very dignified, and does absolutely nothing. It is the governmental equivalent of a gym membership.

English kings did exactly this for generations, and the English people eventually threw one of them out for it. The American Founders remembered. That is why Article II does not merely give the president the power to enforce the laws. It imposes a duty, in one plain line, that he must enforce them. This post explains where that duty came from, what the courts have said about it, and why presidents of both parties keep testing its edges.

The text, and the two verbs that matter

Article II, Section 3 lists the president's duties. Among them:

"he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

Two words carry the weight. The first is shall. This is a command, not a permission. The Constitution does not say the president may take care that the laws be executed when he finds them agreeable. The second is faithfully. The president must carry out the law as written, in good faith, according to its terms and purposes, not according to what he wishes Congress had passed.

The same word appears in the presidential oath in Article II, Section 1, where the president swears that he will "faithfully execute the Office of President of the United States." The repetition is deliberate. Faithful execution is both the oath he swears and the duty he bears.

Notice also what the clause does not say. It does not say the president shall execute the laws personally. It says he shall take care that they be executed. That is a supervisory duty. He oversees the officers who do the work, which is one reason the removal power discussed in The Executive Power Shall Be Vested in a President, and Every Word Counts matters so much. A duty to see that subordinates obey the law is hollow without the authority to replace those who will not.

James II and the powers the English condemned

To understand the clause you have to go back a century before the Constitution, to the reign of James II, who came to the English throne in 1685.

James was a Roman Catholic king of a Protestant country whose laws barred Catholics and Protestant dissenters from public office through religious tests. He wanted to appoint Catholics to military commands and offices anyway. Rather than persuade Parliament to repeal the tests, he simply set them aside.

He did it in two ways, and the distinction matters.

1. The dispensing power exempted particular persons from a law. In the case of Godden v. Hales in 1686, the English judges, sitting on a bench the king had reshaped by dismissing judges who disagreed with him, upheld the king's power to excuse Sir Edward Hales, a Catholic officer, from the test laws. The law still existed for everyone else. It just did not apply to the king's friend.
2. The suspending power set aside a law entirely. In his Declarations of Indulgence of 1687 and 1688, James suspended the penal laws against Catholics and dissenters across the realm. Whatever one thinks of the policy, and religious toleration is a good policy, the method was a king nullifying acts of Parliament by proclamation.

James ordered the clergy of the Church of England to read the 1688 Declaration from their pulpits. Seven bishops petitioned against the order, arguing that the king's suspending power had been declared illegal. James had them prosecuted for seditious libel. A jury acquitted them in June 1688, and London celebrated in the streets. Within months, James had fled, and William and Mary took the throne in what Englishmen called the Glorious Revolution.

The Bill of Rights of 1689

Parliament set down the terms of the settlement in the Bill of Rights of 1689. Its very first complaints went straight at what James had done. It declared that the pretended power of suspending laws, or the execution of laws, by regal authority without the consent of Parliament was illegal. And it declared that the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it had been assumed and exercised of late, was illegal.

Note the word Parliament chose: pretended. The powers were not merely abused. They had never been legitimate. A king who could suspend laws was not a king under law. He was a lawmaker wearing a crown, and lawmaking belonged to Parliament.

The American colonists were raised on this history. Blackstone's Commentaries, the law book on every colonial lawyer's shelf, taught it. And when the Americans drew up their own grievances, they reached for the same language. The Declaration of Independence charges George III with having "refused his Assent to Laws, the most wholesome and necessary for the public good", with forbidding his governors to pass laws "unless suspended in their operation till his Assent should be obtained", and with "suspending our own Legislatures". The suspending power was a familiar enemy.

What the Framers did with that history

When the Framers built the American executive, they gave the president a qualified veto in Article I, Section 7. He may object to a bill before it becomes law, and Congress may override him by two-thirds of each house. That is the president's lawful role in lawmaking. Once a bill becomes law, by his signature or over his veto, his role changes completely. He must execute it.

There is no suspending clause in the Constitution. There is no dispensing clause. There is, instead, a duty to take care that the laws be faithfully executed. The Take Care Clause is the Glorious Revolution's settlement written into American law: the executive enforces what the legislature enacts, and he does not get a second veto after the first one has been spent or overridden.

Several state constitutions of the founding era said the same thing explicitly. Massachusetts, in its 1780 constitution drafted largely by John Adams, provided that the power of suspending the laws or their execution ought never to be exercised except by the legislature. The idea was in the air the Framers breathed.

Kendall v. United States ex rel. Stokes (1838)

The first great test of the clause came in a dispute over mail contracts. Contractors named Stokes and his partners had claims against the Post Office Department. Congress passed a law directing the Solicitor of the Treasury to settle the claims and directing the Postmaster General to credit the contractors with whatever the Solicitor found due. The Solicitor found in their favor. Postmaster General Amos Kendall, an ally of President Andrew Jackson, paid only part.

The contractors went to court asking for a writ of mandamus, an order compelling an official to perform a duty. Kendall's lawyers argued that the courts had no business ordering an executive officer about, since he answered to the president alone.

The Supreme Court disagreed. The duty Congress had imposed was ministerial: a specific act the law required, leaving no discretion. The Court held that such a duty was owed to the law, not to the president's preferences, and could be enforced. And it rejected the argument that the president's role under the Take Care Clause gave him power to stop the law from operating:

"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."

That sentence is the Take Care Clause in a nutshell. A duty to execute is not a power to refuse to execute.

Youngstown Sheet and Tube Co. v. Sawyer (1952)

The second landmark ran the other way, against a president who claimed too much power to act rather than too much power to refuse.

In April 1952, during the Korean War, a nationwide steel strike loomed. President Harry Truman, worried about the supply of steel for the war, issued an executive order directing his Secretary of Commerce, Charles Sawyer, to seize and operate the nation's steel mills. No statute authorized the seizure. Congress had in fact considered giving presidents seizure power in labor disputes and declined to do so.

The Supreme Court struck down the seizure, six to three, in June 1952. Justice Hugo Black's majority opinion was blunt about what the Take Care Clause means:

"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."

Justice Robert Jackson's concurrence became even more influential. He described three zones of presidential power. When the president acts with authorization from Congress, his power is at its maximum. When Congress has said nothing, he acts in a "zone of twilight" where the outcome depends on circumstances. When he acts against the expressed or implied will of Congress, his power is at its lowest ebb, and he can rely only on his own constitutional powers minus whatever Congress holds. Truman, having taken a power Congress had refused to grant, was in the third zone, and lost.

Put Kendall and Youngstown side by side and you have the clause's two edges. The president may not decline to execute a law Congress passed. And he may not execute a law Congress never passed.

How presidents of both parties stretch it

Here is where honesty requires pointing at everyone.

Every president has some enforcement discretion. Prosecutors cannot bring every case. Agencies have limited budgets, and Congress never appropriates enough money to pursue every violation. Choosing priorities, deciding to pursue the worst offenders first, is part of executing the laws faithfully, and nobody seriously argues otherwise.

The trouble starts when discretion turns into a program. In 2012 the Obama administration announced Deferred Action for Childhood Arrivals, which declined to remove a whole category of people living in the country unlawfully and offered them work authorization. When it tried to expand the approach to millions of parents in 2014, a federal court blocked the expansion, and the Supreme Court affirmed by an equally divided vote in United States v. Texas (2016). Whatever one thinks of the policy, the method looked uncomfortably like the suspending power: a category-wide decision not to apply a statute Congress had declined to change. The same administration also delayed by administrative announcement statutory deadlines in the Affordable Care Act, including the employer mandate.

Republican presidents have tested the edges too. President George W. Bush issued signing statements on a large number of statutory provisions, announcing he would construe them consistent with his view of his own constitutional powers, which critics argued came close to a dispensing power. And in January 2025 President Trump directed a 75-day pause in enforcing the law Congress had passed in 2024 requiring the divestiture of TikTok. Supporters called it a reasonable use of discretion while a sale was negotiated. Critics called it the suspension of a statute.

The point is not that every one of these examples was unlawful. Courts and scholars disagree about several. The point is that the temptation is bipartisan and permanent. A president who has a policy goal and a Congress that will not cooperate will always be tempted to achieve by non-enforcement what he could not achieve by legislation.

The objection, and the answer

The strongest objection runs this way. Prosecutorial discretion is ancient and real. The executive has never enforced every law against every violator. If a president cannot set enforcement priorities, the Take Care Clause would require the impossible, and Congress, by underfunding enforcement, has effectively delegated the choice of priorities to him. Why should a categorical priority be any different from a case-by-case one?

Here is the answer, point by point.

1. Priorities are about order, not nullification. Choosing which violations to pursue first, with limited resources, is execution. Announcing that a whole category of violations will not be pursued, and then conferring benefits on the people in that category, is something else. That is a policy change. Policy changes belong to Congress.
2. The question is whether the law still operates. Under faithful execution, the statute remains the rule, and discretion governs how fast and against whom it is applied. Under suspension, the statute stops being the rule. The Bill of Rights of 1689 condemned exactly that.
3. A rule that only works when your side is in power is not a principle. Conservatives who objected to category-wide non-enforcement under one president should object to it under the next. Anything a president can suspend by announcement, his successor can suspend in the other direction. A law that depends on the president's mood is not a law.
4. The fix is political, and the Constitution provides it. Congress holds the purse, and can write specific mandates and fund them. It can hold oversight hearings. It can write statutes whose duties are ministerial, as in Kendall, so that courts can enforce them. And voters can judge.

The deeper principle is the one James II forgot. A free people is governed by laws its representatives make, not by the preferences of whoever holds the executive office. That principle sits behind the fight over Congress's own shortcuts in INS v. Chadha Killed the Legislative Veto and Left Congress Fewer Tools, the long-running fight over agency power described in Madison Called It the Very Definition of Tyranny, and Agencies Hold All Three, and behind Congress's power of the purse in No Money Shall Be Drawn but by Appropriation, Congress's Power of the Purse. The Take Care Clause is where it lives in Article II.

The case in brief

1. The president "shall take Care that the Laws be faithfully executed"; the words are a command, not a permission.
2. The clause answers the suspending and dispensing powers James II used and the English Bill of Rights of 1689 declared illegal.
3. Kendall v. United States (1838) held that a duty to execute is not a power to forbid execution, and Youngstown (1952) held that the duty does not make the president a lawmaker.
4. Presidents of both parties have stretched enforcement discretion into category-wide non-enforcement, and that temptation must be resisted whoever holds the office.

What you can do: read Article II, Section 3 on our Constitution page, then ask your representative's office, through our representatives page, which statutes it believes the executive is failing to enforce and what oversight it is doing about it.