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Tuesday, June 11, 2019

The Fiduciary Theory of Article II

I'm proud to announce the publication of Faithful Execution and Article II (co-authored with Andrew Kent and Jed Shugerman) in the Harvard Law Review's latest book.  Although I had obviously been interested in the public law-fiduciary law interface in prior work, writing and researching with careful historians was a new and exciting -- and oftentimes humbling experience.  Having started thinking about these issues during the Obama years (when questions of presidential overreach surfaced in immigration policy, drug enforcement priorities, and waiver for ACA implementation), they obviously have continuing relevance in the current climate, where a fiduciary conception of the presidency would tend to focus us on conflicts of interest and profiteering from office.  Although we leave to others to decide whether our historical lessons create any action items for our current politics, our constitutional law is always informed by history even when it is also politics by other means.  At the least, I feel that we tried to add some really thorough and important history to the mix.  Here is abstract:

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up through the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices — especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but to a vast number of more ministerial officers, too. We contend that it imposed three interrelated requirements on officeholders: (1) a duty not to act ultra vires, beyond the scope of one’s office; (2) a duty not to misuse an office’s funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit Presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretations of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President’s faithful execution.

Posted by Ethan Leib on June 11, 2019 at 02:16 PM | Permalink


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