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The Protean Take Care Clause

In simple but delphic terms, the Take Care Clause states that the President “shall take Care that the Laws be faithfully executed.” Today, at least, no one can really know why the Framers included such language or placed it where they did. Phrased in a passive voice, the clause seems to impose upon the President some sort of duty to exercise unspecified means to get those who execute the law, whoever they may be, to act with some sort of fidelity that the clause does not define. Through a long and varied course of interpretation, however, the Court has read that vague but modest language, in the alternative, either as a source of vast presidential power or as a sharp limitation on the powers of both the President and the other branches of government.

A brief Article is no place to try to fill all the interpretive and analytical gaps in the Court’s Take Care Clause jurisprudence or to wade into the rich debates that have engaged legal scholars, if not the Court. Instead, the Article brings together various doctrines in order to show that the Court uses the Take Care Clause as a placeholder for more abstract and generalized reasoning about the appropriate role of the President in a system of separation of powers. It also sketches lines of inquiry that the Court might pursue if it were ever to approach the Take Care Clause seriously on the clause’s own terms.