Brigham Young University Prelaw Review


Take Care Clause, Executive Orders, Constitutional Law, Presidential Power, DACA, DAPA, Supreme Court


The debate over the scope of presidential powers is even older than the Constitution itself and in our modern political era, this debate turns largely on Executive Orders. From internment camps and steel seizures to Dreamers and travel bans, Executive Orders have long been at the center of political controversy, and yet the Supreme Court has not developed any consistent method for their judgement. Indeed, they have not made a significant ruling on non-military presidential powers in nearly seventy years. The Court signaled their intention to rule upon the subject in 2016 when they granted certiorari to Texas v US, 579 US __ (2016), a case challenging President Obama’s Executive Order known as DAPA. The death of Justice Antonin Scalia, however, left the Court deadlocked and the scope of presidential power untouched. In this paper, I examine the issue of presidential power through the lens of the Take Care Clause, analyzing the same Order the Court was poised to rule on, DAPA, as well as its sister program, DACA. Through this analysis, I assert that the Court should rule DACA a constitutional use of presidential power via the Take Care Clause but should rule DAPA an unconstitutional overreach of executive power. I then distill the principles of those arguments into a framework that could be adopted by the Court and applied to all cases regarding presidential power and authority and apply it to several hypothetical scenarios.