“Faithful Execution” and Article II, 132 Harvard Law Rev. (forthcoming 2019), by @andrewkent33, Ethan Leib, and me, on the Constitution’s overlooked limitations on presidential powers, based on English, colonial, and Founding’s use of “faithful execution.” papers.ssrn.com/sol3/papers.cf…
2/ Constitution’s Article II imposes a duty of “faithful execution” on the President: “take Care that the Laws be faithfully executed,” and the oath to “faithfully execute the Office of President.” They cited often, but their original meaning have never been fully explored.
3/ Courts, the executive branch, and many scholars hace relied on these clauses as support for expansive presidential power, but these clauses are better understood in their original historical context of limiting discretion, restraining power, and imposing duties of good faith.
2/ The Constitution’s Article II imposes a duty of “faithful execution” on the President: “take Care that the Laws be faithfully executed,” and the oath to “faithfully execute the Office of President.” They cited often, but their original meaning have never been fully explored.
3/ Courts, the executive branch, and many scholars have relied on these clauses as support for expansive presidential power, but these clauses are better understood in their original historical context of limiting discretion, restraining power, and imposing duties of good faith.
4/ We explore the textual roots of these clauses from the Magna Carta and medieval England, through colonial America, up to the Founding. We find that “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices...
5/ We contend it imposed 3 core requirements on officers:
(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;
(3) a duty not to act ultra vires, beyond the scope of the office.
(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;
(3) a duty not to act ultra vires, beyond the scope of the office.
6/ These 3 duties of fidelity look a lot like fiduciary duties in modern private law. We build on the fiduciary constitutionalism of Natelson, Lawson, & Seidman. This “fiduciary” reading of the original meaning of “Faithful Execution” may have important current implications...
7/ Thus Article II may place some limits on:
A. pardon powers
B. removal powers
C. powers of suspension/non-enforcement of statutes for policy and perhaps even constitutional reasons
D. agencies’ interpretation of statutes to pursue Congress’s objectives.
E. Self-dealing...
etc.
A. pardon powers
B. removal powers
C. powers of suspension/non-enforcement of statutes for policy and perhaps even constitutional reasons
D. agencies’ interpretation of statutes to pursue Congress’s objectives.
E. Self-dealing...
etc.
