The Dual Purposes of the Take Care Clause

[H]e shall take Care that the Laws be faithfully executed...
U.S. Constitution, Article II, §3
The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a "duty" upon the President and the other viewing the Clause as a source of Presidential "power." Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law or regulation. In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are "committed to agency discretion" and therefore not subject to judicial review under the APA. However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. First, a court may review an agency nonenforcement determination "where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." However, when Congress removes or restricts that discretion, by expressly providing "guidelines" or "meaningful standards" for the manner in which the agency may exercise its enforcement powers, the presumption of nonreviewability may be overcome. Abdication of Statutory Responsibilities

In Heckler , the Supreme Court also suggested that the presumption against the review of nonenforcement decisions may be overcome if the agency has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." It is clear, however, that the judicial branch's reluctance to review executive branch prosecutorial and administrative enforcement decisions is grounded in a respect for the roles and functions of each branch of government; an acknowledgement that it would generally be improper and impractical for the court to review discretionary enforcement decisions made by executive branch officers; and the Take Care Clause, as control over the enforcement of law has been viewed as within the "special province of the Executive Branch" and an aspect of executive power that "lies at the core of the Executive's duty to see to the faithful execution of the laws." While it would appear that Congress may have greater authority over administrative enforcement discretion, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.
The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a "duty" upon the President and the other viewing the Clause as a source of Presidential "power." Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law.
In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are "committed to agency discretion" and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an "agency's decision not to take enforcement action should be presumed immune from judicial review."
However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination "where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers," or where the agency has "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities."
As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing "meaningful standards" for the manner in which the agency may exercise its enforcement powers.
Nevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.