'Faithful Execution' and Article II

72 Pages Posted: 8 Oct 2018  

Andrew Kent

Fordham University School of Law

Ethan J. Leib

Fordham University School of Law

Jed Handelsman Shugerman

Fordham Law School

Date Written: October 4, 2018

Abstract

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

Keywords: U.S. Constitution, faithful execution, original public meaning, take care clause, presidential oath, fiduciary law, presidential power, article II

Suggested Citation

Kent, Andrew and Leib, Ethan J. and Shugerman, Jed Handelsman, 'Faithful Execution' and Article II (October 4, 2018). Available at SSRN: https://ssrn.com/abstract=3260593 or http://dx.doi.org/10.2139/ssrn.3260593

Andrew Kent (Contact Author)

Fordham University School of Law ( email )

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

Ethan J. Leib

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)

Register to save articles to
your library

Register

Paper statistics

Downloads
114
rank
225,856
Abstract Views
360
PlumX