The unlawful deportation of Kilmar Abrego Garcia to El Salvador and the subsequent failure of the Trump Administration to return him (despite being ordered by a court to do so) seems to many to be the final straw for the constitutional order: the President is actively ignoring his responsibility to uphold the law. This situation with court orders is new; what is not new is the Executive’s selective nonenforcement of the law. For as long as the President has been charged with “tak[ing] care that the laws be faithfully executed” by Article II of the Constitution, he has chosen at times to not take care that those laws be faithfully executed (under the guise that said laws are unconstitutional) or to deprioritize the execution of those laws (nearly to the extent of nonenforcement).[1]
This article will review the history of Presidential nonenforcement of the laws, from the time of the Founding to the present day, and how that nonenforcement interacts with the duties of the President under the Take Care Clause of the Constitution as it has been interpreted by the Supreme Court. The goal of my article is to take that history and jurisprudence and with it contextualize the Court’s recent decision in United States v. Texas and analyze its significance.
I. Background for United States v. Texas
In 2021, the Biden Administration established guidelines for the civil removal of illegal aliens from the United States that limited deportation efforts to aliens considered threats to “national security, public safety, and border security,” a decision that greatly reduced the number of aliens removed from the United States.[2] Texas, along with a number of other States, sued the Administration on the basis that the Administration was violating Federal law that commanded that the Government “shall take into custody”[3] and “shall remove”[4] certain aliens from the United States.
The Supreme Court took the case as United States v. Texas and held for the Government in an eight-to-one decision (Justice Alito dissenting). The Court ruled solely on one question: whether the States had standing to challenge the guidelines in the first place. The Court found that because the Executive was exercising its discretion in its enforcement of immigration law, the States had no standing to sue. In order to understand the Court’s answer to that question, we must first turn to the history of the interpretation of the clause at the heart of the controversy.
II. The Original Understanding and Practice of the Take Care Clause
Though it is the most powerful Department, the Executive on paper is little more than an elected figurehead. Whatever powers are granted to it can broadly be divided into three categories, the same categories that the Constitutional Convention divided them into: “the Executive rights vested in Congress by the Confederation,” powers traditionally belonging to the Crown, and “a general authority to execute the National laws.”[5] To the first section belongs powers like that of managing armies, which were assigned to Congress by the Articles of Confederation. To the second belongs the powers most concentrated in the Executive, like that of granting clemency. To the last belongs the ethereal powers that were at issue in United States v. Texas. Ironically, of the three categories, the last was the least controversial at the Convention: while some fretted about vesting the Executive with the powers in the first category[6] and others about those in the second[7], there was broad agreement that some form of the Take Care Clause should be present in the final draft. Edmund Randolph proposed the original language of “execut[ing] the National laws,”[8] Roger Sherman saw the Executive as “an institution for carrying the will of the Legislature into effect,”[9] James Wilson wanted the Executive to simply “execut[e] the laws,”[10] and James Madison himself (supported by one of the Charles Pinkneys) wished for the Executive to be vested with the “power to carry into effect the national laws.”[11]
Contemporary definitions of the text of the Take Care Clause appear to reinforce the views of the Framers. “Faithfully” meant “with strict adherence to duty”[12] or “truly, steadily,”[13] indicating that the Constitution bound the President to implementing the laws of the United States as they were. The command for an officer to “take care” was not unique to the Constitution, either. It “was a directive… that special attention be paid to ensure that a command or duty was carried out.”[14] The definition of “the laws” was slightly vaguer than that of other terms, but it seems to have meant strictly those statutes which are passed by Congress, and not the Constitution. The phrase “the laws” is used in other parts of the Constitution, and when it is used, it is put in a list that also contains the phrase “this Constitution,” implying that the phrase “the laws” does not include the Constitution.[15] This means that even if a President believes a law passed by Congress to be unconstitutional, he may not refuse to enforce it, as his obligation is to execute the commands of the statute itself and not the Constitution more broadly.
Original practice also tends to fit into the Framers’ understanding of the Clause. Most States at the time of the Founding had clauses similar to that of the Take Care Clause in their constitutions, with some nearly verbatim: New York’s read that the Governor was obliged to “take care that the laws are faithfully executed.”[16] The practice in each State was that the Governor was “required to both abide by and faithfully apply the law” and “had no power to suspend the laws or dispense with their application to specific persons.”[17] In some situations, the Executive decided on a general policy of nonprosecution for certain crimes, but that falls under a particular niche of nonenforcement, prosecutorial discretion, that has deep roots in American law and does not give much insight to the Executive’s overall responsibility to enforce the laws.[18]
On the whole, the original understanding of the Take Care Clause is clear. The Framers saw the President as merely an agent for Congress to carry into effect its will, without much discretion of his own. Common definitions of the terms in the Clause affirm that interpretation, forcing the President to adhere to Congress’ instructions. Finally, those States which had Take Care Clauses of their own held their governors to strict execution of the laws passed by the legislatures, and even nonenforcement by the Federal Executive was limited to prosecutorial discretion. American jurisprudence has not always remained faithful to this original understanding, however, and the Supreme Court’s understanding of the Take Care Clause has varied considerably over the last two-and-a-half centuries.
III. Jurisprudence on and the Development of the Take Care Clause
The earliest case to address the extent of the Take Care Clause head-on was Kendall v. United States ex. rel. Stokes. Congress had commanded the Postmaster General to pay a sum of money to a contractor, and the Postmaster General refused, claiming to be acting under Presidential authority.[19] While this claim was found to be false, the Supreme Court addressed the Executive’s nonenforcement power briefly before moving on. In alignment with the original understanding of the Take Care Clause–that it was a strict duty requiring the President to carry out Congress’ instructions–the Court found that “a dispensing power,” that is, a nonenforcement power, “had no countenance for its support in any part of the Constitution.”[20]
Nearly thirty years later, the Take Care Clause came up again. President Johnson was being sued by the State of Mississippi for enforcing the Reconstruction Acts, which Mississippi alleged were unconstitutional and sought to enjoin.[21] In an effort to protect the enforcement of the Reconstruction Acts from injunction, the Court created a new distinction between exercises of Executive power, and separated the previously single category of ‘executing the laws’ into so-called “ministerial” and “executive and political” actions.[22] Ministerial actions were like those in Kendall: actions in which “nothing [was] left to discretion,” “definite [duties], arising under conditions admitted or proved to exist and imposed by law.”[23] Executive and political actions, or discretionary actions, were those where there was “room for the exercise of judgment.”[24] By claiming that the President’s enforcement of the Reconstruction Acts was discretionary (apparently justified by the fact that he had to assign generals to military districts), the Court was able to cry ‘separation of powers’ and remove itself from the situation, keeping the Reconstruction Acts intact.[25] These two new categories of enforcement power are nowhere to be found in the Constitutional text or the original understanding of the law. The original understanding was that, while the President had some ‘wiggle room’ in the manner he enforced the laws, he still had a positive duty to enforce the laws faithfully, even when that enforcement required some minor decision making. Though Johnson did not address Executive nonenforcement, it created a new category for enforcement where the Executive was shielded from judicial review and had discretion to do what he wished, opening the way for what I term ‘asymptote nonenforcement,’ which will be discussed in more detail in Part IV.[26]
In 1915, the Supreme Court heard United States v. Midwest Oil Co., a dispute over oil rights. Prior to 1909, oil-rich lands in the United States were open to public exploitation, but in 1909, President Taft closed off those lands to conserve energy resources.[27] The Court held that “the Constitution does not confer upon [the President] any power to enact laws or to suspend or repeal such as the Congress enacts,” in line with the understanding that the President is bound to Congress’ commands.[28] However, the Court opened up another avenue for the President to disregard the law, claiming that “the laws” that the Executive was tasked with faithfully executing included “the rights and obligations growing out of the Constitution itself,” an interpretation out of line with the original understanding of the Take Care Clause.[29] After Midwest Oil, the President could licitly ignore Congress’ commands so long as he claimed that those commands were in violation of the Constitution, thereby claiming Constitutional interpretive power for himself and overstepping the bounds of the Take Care Clause.[30]
The greatest test of the President’s authority to enforce the law his ‘own way’ was Youngstown Steel & Tube Co. v. Sawyer. The case centered around President Truman’s seizure of steel mills to prevent a wartime strike–the issue with the seizure, though, was that it was not authorized by statute whatsoever, so Truman claimed inherent constitutional authority.[31] Truman’s claim was succinctly rejected by the majority, which stated that “President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”[32]
An analysis of the Supreme Court’s Take Care Clause jurisprudence over time has changed. Early on, the Supreme Court stayed close to the original understanding of the Clause in cases like Kendall, where the Clause was characterized as more of a restriction than a grant of power. Around the turn of the century, the Court opened up avenues for the Executive to evade the strictures of the Take Care Clause, including asymptote nonenforcement in Johnson and constitutional nonenforcement in Midwest Oil. However, when pressed with major issues like Youngstown, the Court still stayed true to the Constitution. In modern times, though, the Executive has taken greater liberty to evade its responsibility under the Constitution, culminating in United States v. Texas.
IV. Modern Times and United States v. Texas
When the Court held that the States suing the Biden Administration had no standing, it did so on the grounds that the Executive had discretion over the enforcement of immigration law that was unreviewable by the judiciary, and that the exercise of such discretion did not create standing for the States. The Court reasoned that immigration enforcement included things like arrests and detentions, and so found that the Executive had prosecutorial discretion, a legitimate form of nonenforcement, with regard to immigration law.[33] This reasoning is faulty–prosecutorial discretion applies only properly to criminal prosecutions, as evidenced by its sources in nolle prosequi in British law[34] and its history in the United States.[35] Extending it to enforcement of civil law, under which most immigration proceedings fall, is to shield the President’s decisions to enforce or not enforce from judicial review, negating the responsibilities of the Take Care Clause.
The Court also argued that, as “the Executive Branch must prioritize its enforcement efforts,” the judiciary lacks “meaningful standards for assessing the propriety of enforcement choices in this area.”[36] While true, this analysis misses the point. The memorandum at question in Texas was more than a focus shift–it was functionally an exemption from deportation for most illegal aliens. That sort of exemption is not a prioritization, but a negation of the law that the Executive has a duty to enforce.
Most importantly, the Court also held that the States might have had standing if “Executive [had] entirely ceased enforcing the relevant statutes.”[37] This distinction is simply a loophole. As Justice Alito outlined in dissent, “[s]uppose the Federal Government announced that it would obey 80% of the immigration laws… [w]ould the Court say that it had “wholly abandoned” enforcement of these bodies of law?”[38] The Court presented a dichotomy: unless the Executive gives up enforcing the law altogether, it has limitless discretion, untouchable by the Judiciary. The Executive can therefore freely fail to enforce nearly all of the law, so long as it doesn’t actually fail to enforce all of it–nevertheless, the law is essentially voided anyways; I term this “asymptote nonenforcement,” as in this scenario, the Executive’s actions are infinitely close to nonenforcement without actually being full abdication.
United States v. Texas is best seen as a stamp of approval for modern nonenforcement masquerading as executive discretion. I separate such nonenforcement into three categories: asymptote nonenforcement, constitutional nonenforcement, and abdication.
- The door to asymptote nonenforcement, as I defined it before, was opened in Johnson, where the President’s discretion in how to enforce a law was shielded from judicial review, and was kept open by Heckler v. Chaney[39], where administrative agencies’ enforcement discretion was held to “be presumed immune from judicial review.” An example of asymptote nonenforcement was President Obama’s DACA program, where a class of illegal aliens had their deportations deferred to the extent that those aliens were functionally immune from deportation.[40]
- I define constitutional nonenforcement as when the Executive fails to enforce a law on the basis that the law is unconstitutional, citing its own constitutional judgement. This claimed power originates from Midwest Oil, and it can be seen to be exercised today: both the Obama[41] and Trump[42] Administrations declined to defend certain laws in court on the basis that they were unconstitutional, even though defending laws in court is a fundamental part of enforcing them.
- Lastly, I define abdication as when the Executive entirely fails to execute a law without attempting to justify its nonenforcement legally. Abdication is rarer than the other two categories, but does occur: take, for example, the Trump Administration’s decision to not enforce the so-called ‘TikTok ban.’[43]
As can be seen by the progression of nonenforcement across Administrations, Presidents have been claiming more and more power over the execution of the laws for themselves. The Take Care Clause, which was originally understood to tie the hands of the Executive to strictly enforcing the law, has been replaced by freewheeling and unreviewable discretion, leading to Johnson’s edge case now being applied to nearly all exercises of executive power. In Texas, the Court had an opportunity to cabin nonenforcement; instead, the Court gave it expanded purview. The Court extended prosecutorial discretion, the only form of nonenforcement rooted in history and tradition, to nearly all civil enforcement, opening the doorway for licensed nonenforcement in all sectors of law. The Court minimized the role of the judiciary in enforcing the responsibilities of the Take Care Clause against the Executive, which will likely incentivize the Executive towards more aggressive nonenforcement, as future Administrations will expect little pushback from the other two branches of government–this nonenforcement will likely include constitutional nonenforcement, as the Executive tries to usurp the Judiciary’s role of interpreter of the law to serve its own ends. Finally, the Court ignored the dangers of asymptote nonenforcement, instead taking an absolutist position that only abdication is judicially reviewable, and even then, in cases like the ‘TikTok ban,’ where parties have a hard time finding standing, the Executive may be free to do as it pleases. Overall, after United States v. Texas, more blatant nonenforcement actions can be expected, as the Court has shifted its jurisprudence away from the Take Care Clause’s original understanding and its own precedent from the mid 20th century.
Conclusion
The Take Care Clause has never been popular with the Executive. It has served as a restriction on the most powerful office in the world, but in doing so, the Clause has protected the rule of law. The Take Care Clause, as it was originally understood, prevented the Executive from failing to enforce the laws–instead, Congress’ will had to be carried out, regardless of the President’s preferences. Over the decades, the Supreme Court shifted its understanding of nonenforcement and the Take Care Clause, at times opening up avenues for the Executive to loosen its bonds–overall, though, the Court stayed true to the Constitution and the law.
United States v. Texas is a marked departure from that jurisprudence, giving a seal of approval to all forms of nonenforcement. This shift will be especially consequential as the Presidency continues to become more imperial[44] with more centralized authority[45] and therefore greater control over how the Executive enforces the law. This disregard for the rule of law is quieter than the direct defiance of court orders, but the fact that the Executive’s choices to ignore the law have themselves been blessed as semi-legal should ring more than a few alarm bells across the political and legal worlds.
[1] U.S. Const. Art. II § 3.
[2] Alejandro Mayorkas, “Guidelines for the Enforcement of Civil Immigration Law” (Department of Homeland Security, 2021), 3.
[3] 8 U.S.C. § 1226(c).
[4] Id. at § 1231(a).
[5] James Madison, Notes of Debates in the Federal Convention of 1787 (Athens, Ohio: Ohio University Press, 1985), 31.
[6] Id. at 45.
[7] Id. at 46.
[8] See n. 5.
[9] Id. at 46.
[10] Ibid.
[11] Id. at 47.
[12] Id. at 2132 (citing Samuel Johnson, A Dictionary of the English Language).
[13] Ibid. (citing Noah Webster, A Compendious Dictionary of the English Language).
[14] Id. at 2134.
[15] Sophia Shams, “Preserving Faithful Execution: An Examination into the Original Meaning of the Take Care Clause and the Measures to Preserve It,” Georgetown Journal of Law and Public Policy, no. 20 (2022): 808; see U.S. Const. Art. III § 2 (“judicial power… extend[ing] to all cases… arising under this Constitution, the Laws of the United States, and Treaties made…”); see also id. at Art. VI (“this Constitution, [and] the Laws of the United States… and all Treaties made… shall be the supreme Law of the Land…”).
[16] Andrew Kent et. al., “Faithful Execution and Article II,” Harvard Law Review 132, no. 8 (2019): 2175 (citing the 1777 New York Constitution).
[17] Id. at 2175-2176.
[18] See Wayte v. United States, 470 U.S. 598, 607 (1985).
[19] Kendall v. United States ex rel. Stokes, 37 U.S. 524, 524-525 (1838).
[20] Id. at 613.
[21] Mississippi v. Johnson, 71 U.S. 475, 475-478 (1866).
[22] Id. at 499.
[23] Id. at 498.
[24] Id. at 499.
[25] Ibid.
[26] Infra at 11.
[27] United States v. Midwest Oil Co., 236 U.S. 459, 466-467 (1915).
[28] Id. at 505.
[29] Ibid. (citing Thomas Cooley, Cooley’s Principles of Constitutional Law).
[30] See supra at 5-6 (“…even if a President believes a law passed by Congress to be unconstitutional, he may not refuse to enforce it, as his obligation is to execute the commands of the statute itself and not the Constitution more broadly.”).
[31] Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579, 582-584 (1952).
[32] Id. at 588.
[33] United States v. Texas, 599 U.S. 670, 679-680 (2023).
[34] Rebecca Kraus, “The Theory Of Prosecutorial Discretion In Federal Law: Origins And Developments,” Seton Hall Circuit Review 6, no. 1 (2009): 16.
[35] Id. at 18.
[36] Texas, 679.
[37] Id. at 683.
[38] Id. at 728 (opinion of Alito, J.).
[39] See Heckler v. Chaney, 470 U.S. 821, 832 (1985).
[40] VOA News, “What Are DAPA and DACA?,” Voice of America, June 23, 2016, https://www.voanews.com/a/what-are-dapa-daca/3389540.html.
[41] Dahlia Lithwick, “Indefensible,” Slate, February 23, 2011, https://slate.com/news-and-politics/2011/02/the-constitutionality-of-the-defense-of-marriage-act-will-not-be-defended-by-the-obama-administration.html.
[42] Amy Goldstein, “Trump administration won’t defend Obamacare in case brought by Texas and other GOP states,” The Texas Tribune, June 8, 2018, https://www.texastribune.org/2018/06/08/trump-administration-wont-defend-obamacare-case-brought-texas-and-othe/.
[43] See Donald Trump, “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok” (Office of the President of the United States, 2025).
[44] See The White House (@WhiteHouse), “”CONGESTION PRICING IS DEAD. Manhattan, and all of New York, is SAVED. LONG LIVE THE KING!” –President Donald J. Trump,” X (formerly Twitter), February 19, 2025, https://x.com/WhiteHouse/status/1892295984928993698.
[45] See Donald Trump, “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce” (Office of the President of the United States, 2025).