Faithfully Interpreting 'Faithfully'

Abstract

Currently, debate swirls over “Executive Disregard” — the purported presidential prerogative to disregard laws deemed unconstitutional. Scholars on both sides of the issue have latched on to the Constitution’s used of the word faithfully. To Professors Michael Stokes Paulsen, Saikrishna Prakash and other proponents of Executive Disregard, the Take Care Clause demands that the President act faithfully to the Constitution. To Professor Christopher May and others, the Constitution clearly commands that the President “faithfully execute” laws passed by Congress.

As this essay demonstrates, neither side is correct. By undertaking a brief but rigorous review of texts and speeches at the time of the founding, I demonstrate that the clause represents mere boilerplate then found in a wide variety of contexts. That is not to say the clause is meaningless. It demands a minimum level of conduct — with honesty and integrity — that applies to the President himself and everyone under him in the Executive Branch. This conclusion fits neatly with recent scholarship recognizing an anti-corruption principle underlying many provisions of the Constitution.

The scope of this essay is concededly narrow — a single word used only twice in the Constitution. But a better understanding of the word should sharpen the greater debate over Executive Disregard, requiring both sides to cast aside their convenient assumptions about the word and focus instead on arguments with merit. Further, the essay makes a second, not inconsequential, observation: There exists a constitutional standard of conduct for the President, and the President must “take care” that subordinates in the Executive Branch also satisfy that standard.

Keywords: constitutional law, executive power, take care clause, faithful execution clause, executive disregard, originalism

JEL Classification: K10, K19, K30, K39