ArtII.S3.3.2 Who Can Fulfill the Take Care Duty

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.

Whereas the British monarch is constitutionally required to always act through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In an 1855 opinion, Attorney General Caleb Cushing identified several such examples, including the President’s granting of reprieves and pardons for offenses against the United States and his role as “the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.” 1 According to Cushing, the President’s power as Commander in Chief is “constitutionally inherent in the person of the President” such that “[n]o act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President.” 2

Moreover, according to Cushing, the President’s obligation to act personally may be sometimes enlarged by statute. The act organizing the President with other designated officials into “an Establishment by name of the Smithsonian Institute,” in Cushing’s view, is one such example. Cushing also believed that expenditures from the “secret service” fund, in order to be valid, must be vouched for by the President personally.3 On like grounds the Supreme Court once held void a court martial decree because it was not specifically approved by the President as required by the 65th Article of War.4 The Court, however, has effectively overruled this case, and at any rate such cases are exceptional.5

Over time, the general rule that developed is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, become the President’s acts.6 In Williams v. United States,7 for instance, the Supreme Court considered a statute that prohibited the advance of public money in any case whatsoever to disbursing officers of the United States, except under special direction by the President.8 The Supreme Court held that the act did not require the personal performance by the President of this duty.9 Such a practice, said the Court, would “absorb the duties of the various departments of the government in the personal acts of one chief executive officer” and be not just impracticable but “impossible.” 10 While “[t]he President’s duty in general requires his superintendence of the administration,” the Court reasoned that “he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services” which he is technically required by the Constitution and applicable laws to perform.11 As a matter of administrative practice, in fact, most orders and instructions are attributed to the heads of the departments, even though such orders and instructions are based on powers conferred by statute on the President.12

7 Ops. Atty. Gen. 453, 464–65 (1855). back
Id. back
Cf. 2 Stat. 78. The provision has long since dropped out of the statute book. back
Runkle v. United States, 122 U.S. 543 (1887). back
Cf. In In re Chapman, 166 U.S. 661, 670–671 (1897), the Supreme Court held that presumptions in favor of official action preclude collateral attack on the sentences of courts-martial. See also United States v. Fletcher, 148 U.S. 84, 88–89 (1893); Bishop v. United States, 197 U.S. 334, 341–42 (1905), both of which in effect repudiate Runkle. back
In exercising his or her executive power under the Constitution, the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. The heads of the departments are the President’s authorized assistants in the performance of the his or her executive duties, and their official acts, promulgated in the regular course of business, are presumptively the President’s acts. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 513 (1839). See also United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842); Williams v. United States, 42 U.S. (1 How.) 290, 297 (1843); United States v. Jones, 59 U.S. (18 How.) 92, 95 (1856); The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879); Wolsey v. Chapman, 101 U.S. 755 (1880). back
42 U.S. (1 How.) 290 (1843). back
3 Stat. 723 (1823), now covered in 31 U.S.C. § 3324. back
See Williams, 42 U.S. at 297. back
Id. back
942 U.S. (1 How.) at 297–98. back
See 38 Ops. Atty. Gen. 457, 458 (1936). If the President exercises his or her duty through subordinates, the President must appoint them or appoint the officers who appoint them, Buckley v. Valeo, 424 U.S. 1, 109–143 (1976), and he or she must have the power to discharge those officers in the Executive Branch, Myers v. United States, 272 U.S. 52 (1926). back