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ArtII.S3.3.1 Overview of the Take Care Clause

Article II, Section 3:

He shall from time to time give to the Congress Information of 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 Constitution provides that the President “shall take Care that the Laws be faithfully executed . . . .” This duty potentially implicates at least five categories of executive power, including: (1) powers the Constitution confers directly upon the President by the opening and succeeding clauses of Article II; (2) powers that congressional acts directly confer upon the President; (3) powers that congressional acts confer upon heads of departments and other executive agencies of the federal government; (4) power that stems implicitly from the duty to enforce the criminal statutes of the United States; and (5) power to carry out the so-called “ministerial duties,” regarding which an executive officer can exercise limited discretion as to the occasion or manner of their discharge. The following essays explore some of the questions raised by these executive powers, including how the President may exercise the powers which the Constitution or the statutes confer upon him, the relationship between the Take Care Clause and the President’s power to remove—and thus supervise—those who wield executive power on his behalf, and the extent to which Congress can direct the actions of executive officials.