Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions

28 Pages Posted: 29 May 2018 Last revised: 28 Jun 2018

Ethan J. Leib

Fordham University School of Law

Jed Handelsman Shugerman

Fordham Law School

Date Written: May 14, 2018

Abstract

This Essay explores the Constitution’s requirement that the President “take Care that the Laws be faithfully executed” and the requirement that he take an oath to “faithfully execute the Office of President of the United States.” The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign’s exercise of its political power must be constrained by fiduciary standards – like the duties of loyalty and care – is not new. But we are collecting more and more evidence that the framers of the U.S. Constitution rather self-consciously sought to design a “the fiduciary law of public power” in which the government’s “conduct would mimic that of the private-law fiduciary.” Here we show how the distinctive fiduciary language that appears in Article II reinforces a strain of work in fiduciary constitutionalism by Robert Natelson, Gary Lawson, and Guy Seidman.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what the fact of the fiduciary constitution may mean for modern issues in constitutional law. First, we argue that fiduciary constraint has implications for the legal validity of presidential pardons that are not efforts to pursue the public interest. Because the core duty of all fiduciaries is to be loyal to beneficiaries and not to pursue their own self-interest, pardons in derogation of a president’s fiduciary obligation are invalid. Second, we suggest that when properly conceived as a trust instrument, we can both appreciate where the non-delegation doctrine came from and why it is consistent with the original meaning of the Constitution to have a much relaxed rule about delegation today. By way of conclusion, we meditate on how to convert legal conclusions that flow from the fact of our fiduciary constitution into remedies that make sense for the potentially sui generis fiduciary law that is constitutional law.

Suggested Citation

Leib, Ethan J. and Shugerman, Jed Handelsman, Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions (May 14, 2018). Georgetown Journal of Law & Public Policy, Forthcoming; Fordham Law Legal Studies Research Paper No. 3177968. Available at SSRN: https://ssrn.com/abstract=3177968

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Jed Handelsman Shugerman

Fordham Law School ( email )

140 West 62nd Street
New York, NY 10023
United States
6462933955 (Phone)
6462933955 (Fax)

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