In November 2014, President Obama announced a new program intended to defer the deportation of certain undocumented aliens who had come to the US as children, and their parents. Texas and twenty-five other states vehemently objected and sued to stop the program, claiming that the President had overstepped his legal authority. The states won in the lower federal courts.
In January of this year, the Supreme Court agreed to hear the case, but in doing so may have unwittingly prepared the stage for a different kind of constitutional confrontation. The reason for this arises out of a surprising move made by the Court. It asked the parties to address whether the President’s program violated a provision in the US Constitution called the “take care clause.” The clause states that the president must “take care that the laws be faithfully executed” -and thus prescribes the central responsibility of all presidents, which is to implement and enforce the laws.
Curiously, no party to the case raised the “take care clause” issue in the lower courts, nor did those courts consider the issue either. The Supreme Court generally requires that matters it reviews get fully aired by the parties in prior proceedings. Furthermore, the “take care clause” has never been invoked by the Court to void any executive action, undoubtedly because when there is a violation of a law, corrective steps can be taken under that law itself.
Whatever the Court’s motive in reaching for this issue, a decision by the Supreme Court–and one is expected very soon– that President Obama, or for that matter any other president in a future case, violated the “take care clause” could create great constitutional and political mischief. This is so because the clause plays a key role in presidential impeachments. From Andrew Johnson to Richard Nixon and Bill Clinton, whenever impeachment proceedings have been brought against US presidents, lawmakers have based the case for impeachment on a claimed violation of the “take care clause.” In fact, every article of impeachment against each of these presidents charged a breach of the clause.
Thus, a ruling by the Supreme Court that a president violated the “take care clause” could open up the possibility of impeachment proceedings against the president. It could be an invitation to members of the House of Representatives to initiate proceedings, since they would be relying on the highest court’s determination that a ground for impeachment existed. It could create tremendous political pressure on House members to support impeachment, because it would be difficult to disagree with a Supreme Court determination that a violation had occurred.
Significantly, the framers of the Constitution explicitly considered, but turned down, a role for the Supreme Court in the initiation of presidential impeachment proceedings. But, ruling on the “take care clause” would allow the Court to hack a backdoor into these proceedings and subvert the framers’ intent. Also, if the Court on its own initiative were to plunge itself into the political maelstrom of impeachment, that would quickly and seriously undermine its legitimacy and public support.
For these reasons, the Supreme Court should decline to rule on the “take care clause” in the Texas case. There are other grounds on which the Court could decide to uphold President Obama’s program–which I think it should do–or reject it. The fact that no Justice asked any question about the clause during the oral argument on the Texas case several months ago may be an encouraging sign that the Court will not address the clause. The Court should avoid going down a path that would lead to enormous– and unnecessary– constitutional and political turmoil.
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