The Take Care Clause: An Originalist Analysis

---

Open Full Article

Abstract

This paper explores the original legal meaning of the Faithful Execution Clause of Article II, Section III of the U.S. Constitution. The Clause compels the President to “take care that the laws be faithfully executed”. This article will examine the extent of the discretion vested in the President by the Take Care Clause and its dispensation power. Scholarly discussions surrounding the Take Care Clause have typically understood the provision to serve as a source of power, enabling the executive to act contrary to Congressional statutes. However, through careful historical analysis of both the language of the clause and the inherent logic of Article II, this paper argues that the Take Care Clause does not grant such expansive, unilateral powers to the President. After examining how each part of the Take Care Clause shapes executive power, this paper will contend that while the Take Care Clause grants some discretionary power to the President, the provision ultimately serves as a check on executive discretion by imposing limits on his authority to execute established law.