The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.

The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.

The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.

The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.

So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.

He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.

Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.