Vanderbilt Law Review

First Page



The Constitution is explicit: The President "shall take care that the laws be faithfully executed." Lurking, however, within that seemingly unambiguous language are several constitutional problems-some resolved, some partially resolved, some the subject matter of continuing controversy. As the power of the Presidency has aggrandized since 1789, particularly during the past half century, the question of the meaning to be given to that phrase-and by whom-in different contexts has moved to the forefront of issues involving the separation of governmental powers. This Essay will use the label "separation of governmental powers," although it long has been known that the constitutional scheme calls for separate institutions sharing power-quite a different thing.

This Essay addresses the faithful-execution provision in four discrete areas: (1) Presidential power when the Constitution is silent-here "reason of state" (raison d'etat) is the focus of attention; (2) the Presidency and statutory mandates-a recent decision in the Third Circuit provides a point of departure; (3) the question of the President's constitutional duty to enforce Supreme Court decrees-Cooper v. Aarons is the principal center of attention here; and (4) the President and international law-the Executive's recent actions with respect to the International Court of Justice offer a factual context for discussion of these principles. In speaking of the President and his duty to faithfully execute the laws, I shall make reference not only to the Chief Executive himself, but also the institutional Presidency and to that congeries of agencies,departments, and bureaus that make up what usually is called the executive branch. In legal theory, those who are the officers of that branch ultimately are responsible to the President, and he ultimately is responsible for their actions. Only the so-called independent regulatory commissions fall, in legal theory, outside the ambit of Presidential duty.