Our Fiduciary President

by Mike Rappaport

One important area of constitutional law involves the Take Care Clause of the Constitution. Unfortunately, there is a great deal of disagreement about the Clause’s meaning. Happily, at the Originalism Works in Progress Conference held at the University of San Diego School of Law last February, a new paper on the subject, “‘Faithful Execution’ and Article II” was presented. Written by Andrew Kent, Ethan Leib, and Jed Shugerman, the paper, which is being published in the Harvard Law Review, sheds new light on the Clause.

One important insight that the paper makes is to link the Take Care Clause and the Presidential Oath Clause. The paper argues that these two clauses should be understood as having similar objectives. Both clauses are designed to limit the misuse of executive power. They do so through alternative means—by an oath and by a legal obligation.

The paper also argues that the two clauses impose a common duty on the President to act as a fiduciary. This fiduciary duty includes the diligent and impartial execution of the law, a prohibition on the misappropriation of profits, and a prohibition on unauthorized or ultra vires actions. The paper roots these fiduciary duties largely in the history of oaths that have been applied to executive officials.

There is a reasonable textual basis both for the fiduciary obligation and for the connection between the two clauses. The Take Care Clause provides that the President “shall take Care that the Laws be faithfully executed.” The Presidential Oath Clause requires that the President swear or affirm that he “will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Both clauses require that the President faithfully execute something—either the laws or his office. This obligation of faithfulness is a very plausible vehicle for what we now see as fiduciary duties.

The paper spends considerable space discussing the long history of oaths of office. This history shows the importance of oaths historically. These oaths have been used for at least 700 years in England. The paper suggests that the Presidential Oath requirement was not some afterthought of the Framers, but one of the central ways they hoped to restrain improper government behavior.

While the paper enhances our understanding of the Take Care and Presidential Oath Clauses, I am not sure how helpful it is in resolving specific cases. I believe that the paper makes a strong case that Presidents cannot simply close their eyes to wrongdoing by people within the executive. They have an obligation to undertake reasonable efforts to prevent that wrongdoing. But I knew that before reading the paper, based on the text of the Take Care Clause. The paper confirms that conclusion, which is nice, but it does not really teach me anything new here.

A tougher issue for the paper involves the scope of the President’s fiduciary obligations. While the paper claims that the President must avoid conflicts of interest and misappropriation of profits, it does not really explain how far that extends. For example, what about a President who takes actions that are intended to benefit his political party in future elections?  For example, does it violate the oath for a President who wants his party to do well in Iowa to veto a law that would cut back on farm subsidies? The strong position that the paper takes on the President benefiting himself makes this a legitimate question.  Yet, holding such vetoes to be illegal seems problematic.  Thus, many questions remain as to the scope of the President’s duties in this area.