The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, federal courts have been forced to confront important constitutional questions concerning the President\u2019s exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations?<\/p>\n
This Article argues that the Take Care Clause of Article II, Section 3 constrains the President\u2019s administrative discretion and that judges are obliged to determine whether that discretion has been \u201cfaithfully\u201d exercised. It then constructs a faithful execution framework that judges can use to implement the \u201cletter\u201d\u2014the text\u2014and the \u201cspirit\u201d\u2014the functions\u2014of the Take Care Clause. To that end, it makes use of a theory of fiduciary government that informed the content and structure of the Take Care Clause and draws upon well-established administrative law doctrines. It uses the faithful execution framework to evaluate President Barack Obama\u2019s 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump\u2019s 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitutionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism.<\/p>\n