Beyond the Bully Pulpit: Presidential Speech in the Courts

By Shaw, Katherine | Texas Law Review, November 1, 2017 | Go to article overview

Beyond the Bully Pulpit: Presidential Speech in the Courts


Shaw, Katherine, Texas Law Review


Introduction

Presidential speech, "part theater and part political declaration,"1 is both a central feature of the contemporary presidency and a key tool of presidential governance. The President's words are often designed to reach multiple audiences: Congress and the public; members of the federal bureaucracy and regulated industries; allies and adversaries. They may aim to inspire or to mobilize, to comfort or to condemn.2

But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of these citations are no more than passing references; at other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action.

Public law scholars have considered the role of presidential rhetoric (as well as actual presidential involvement) in the formal legislative process, when it comes to both proposing and shaping legislation;3 such discussions typically approach presidential speech as a subset of legislative history, with its relevance subsumed within larger debates about the propriety of reliance on legislative history.4 And a rich body of administrative law literature questions the President's ability to control the actions of executive branch agencies and officials, including through both direction and rhetorical appropriation of agency action.5 But, although presidential speech often appears in these debates, no sustained attention has yet been paid to the role of presidential statements, as a distinct category, in judicial fora.

With or without scholarly attention, however, courts do incorporate presidential speech into their decisional processes, in sometimes surprising ways. A number of recent examples from the lower courts, which I'll introduce briefly here and revisit in depth in Part III, help illustrate the scope of the phenomenon. In the first, a challenge to the Obama Administration' s executive action on immigration, a Texas district court repeatedly invoked presidential statements when reaching the conclusion that the challenged program likely represented a substantive rule change for which notice-and-comment rulemaking had been required.6 Presidential statements played a similar role in a constitutional challenge to the military's "Don't Ask Don't Tell" (DADT) policy;7 in that case, the district court relied on a single presidential speech as support for the conclusion that, contra the representations made by the Departments of Justice and Defense, DADT did not advance national security interests.8 A district court in a third example rebuffed a Guantanamo detainee's attempts to rely on the contents of a presidential speech to establish changed conditions that rendered his continued detention unlawful.9 A fourth case rejected a constitutional challenge to a targeted killing, with the district court pointing to presidential speech as evidence of the continuing threat posed by the target of the strike. 10 Finally, multiple decisions on President Trump's "travel ban" executive orders have featured extensive reliance on presidential statements (as well as statements by candidate Trump and staffers and associates) as evidence that the orders were motivated by a discriminatory purpose.11

Each of these examples is striking in the impact of presidential speech on a court's analysis of the legal status of some government conduct. Together, these examples illustrate the range of uses to which presidential speech is put in the courts, as well as the magnitude of its potential impact. And in each case in which presidential statements are invoked, their treatment appears largely ad hoc, undertheorized, and badly in need of guiding principles. …

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