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Tuesday, June 5, 2018

Article II Powers and Duties

In response to a legal memo by POTUS's lawyers, a group of legal scholars has written an open letter on Article II powers.  An excerpt:
While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.
When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.
The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papers repeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]
It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7]and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament. Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]
These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]
The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.
Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.