The Supreme Court’s decision in Kendall is illuminating. The postmaster general refused to comply with the Solicitor’s decision, arguing that he “was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon by the constitution, to take care that the laws be faithfully executed.” 37 U.S. (12 Pet.) at 612. The Court emphatically rejected this argument.29 Instead the Court ruled that the Congress had waived sovereign immunity and submitted to whatever resolution the Solicitor ordered. “The terms of the submission was a matter resting entirely in the discretion of congress; and if they thought proper to vest such a power in anyone, and especially as the arbitrator was an officer of the government, it did not rest with the postmaster general to control congress, or the solicitor, in that affair.” Id. at 611 (emphasis added). Thus, Kendall stands for the proposition that the executive must comply with the terms of valid statutes and that if a statute requires the executive to submit to binding arbitration, the executive must do so.
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29 “This is a doctrine that cannot receive the sanction of this court . . . . To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.” Id. at 612.
The Take Care Clause itself has no bearing on the question of whether the Constitution permits the federal government to enter into binding arbitration; in this context, it simply requires the President to “take Care” that whatever valid legal requirements30 might exist are followed. It is necessary to consider the application of this principle in three situations. First, where a statute or other law operates to require the government to submit to binding arbitration, the government must submit. Kendall, 37 U.S. (12 Pet.) at 611. Second, where a statute or other law forbids submission to binding arbitration, such as where it expressly vests discretion in a particular government officer, submission to binding arbitration is forbidden. Discover Establishment of a Labor Relations System for Employees of the Federal Labor Relations Authority, 4B Op. O.L.C. 709, 715-16 (1980).31 Finally, where the statutes and other laws are silent, the Take Care Clause simply has nothing to say about whether the government may submit to binding arbitration.
30 In the above-cited opinion, Attorney General Civiletti did not ignore his power, and indeed obligation, to decline to enforce or decline to defend an unconstitutional statute, especially one violating the Constitution’s separation of legislative and executive powers. See Duty to Defend and Enforce Constitutionally Objectionable Legislation, at 2 (in such a situation, the Attorney General “would be untrue to his office if he were to do otherwise”); Letter from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Abner J. Mikva, Counsel to the President (Nov. 2, 1994) (“there are circumstances in which a President may appropriately decline to enforce a statute that he views as unconstitutional”).
31 Where a statute vests final decision-making authority in an executive branch official, that official must make the decision and may not – absent congressional authorization – delegate that authority to another official or to a private actor such as an arbitrator. See id. This case must be distinguished from the situation where the final decision of an executive official is subject to judicial review. Here, the official must make the decision in the first instance. If a challenge is subsequently brought, then absent some specific statutory bar or other legal impediment, there is nothing in the Take Care Clause that would prohibit such an official from opting for binding arbitration rather than adjudication before an Article III court. Currently, Exec. 12778 imposes an absolute prohibition on opting for binding arbitration where litigation counsel is not otherwise compelled to submit to it.