“Let’s talk about today: The one-year anniversary of another manifestation of the epidemic of gun violence in America,” Pelosi said. “That’s a national emergency. Why don’t you declare that emergency, Mr. President? I wish you would.
Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” This clause, known as the Take Care Clause, requires the President to enforce all constitutionally valid Acts of Congress, regardless of his own Administration’s view of their wisdom or policy. The clause imposes a duty on the President; it does not confer a discretionary power. The Take Care Clause is a limit on the Vesting Clause’s grant to the President of “the executive power.”
The United States Court of Appeals for the D.C. Circuit, in an opinion handed down just last year striking down the President’s assertion of authority to disregard a federal statute, provided a succinct description of the President’s obligations under the Take Care Clause, as follows:
Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a CONSTITUTIONAL OBJECTION to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.
There is both a positive and negative aspect to this part of the Constitution. In other words, a President cannot declare an emergency that violates the 2nd Amendment. (I can’t believe a high school drop out 3-time felon has to point that out to the Speaker of the House.)