Alito, J., dissenting
scholars have concluded that the Take Care Clause was meant to repudiate that authority.[1] See 1 Works of James Wilson 399, 440 (R. McCloskey ed. 1967) (describing Clause as providing that the President holds “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws”).
Early decisions are inconsistent with the understanding of Executive Power that appears to animate the majority. In 1806, Justice Patterson, while presiding over a criminal trial, rejected the argument that the President could authorize the defendant to violate the law. United States v. Smith, 27 F. Cas. 1192, 1201 (No. 16,342) (CC NY 1806). He concluded:
“The president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure; which is a doctrine that has not been set up, and will not meet with any supporters in our government. In this particular, the law is paramount.” Id., at 1230.
In Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1838), the full Court rejected the President’s claim that he had the authority to disregard a statutory duty to pay certain sums to a government contractor: “To contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is
- ↑ See, e.g., Delahunty & Yoo, Dream On 803–804 (2013); Reinstein, Limits 281; S. Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 726, n. 113 (2003); C. May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative 16 and n. 58 (1998); R. Reinstein, An Early View of Executive Powers and Privilege: The Trial of Smith and Ogden, 2 Hastings Const. L. Q. 309, 320–321, n. 50 (1975).
Making of the American Constitution 140 (2009) (describing debate over the executive veto).
