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Presidential Norms and Article Ii PRESIDENTIAL NORMS AND ARTICLE II Daphna Renan INTRODUCTION .......................................................................................................................... 2189 I. STRUCTURAL NORMS AS A LENS ON PRESIDENTIAL POWER ............................... 2195 A. Defining Structural Norms ............................................................................................ 2197 B. Moral Reasons to Comply with Social Expectations ................................................. 2198 C. Group-Relative and Normatively Provisional ............................................................. 2203 D. Identification and Pathways of Constraint ................................................................. 2204 II. THE NORM-BASED PRESIDENCY .................................................................................. 2206 A. Insulation Norms: Investigatory Independence .......................................................... 2207 B. Self-Dealing Norms: Conflict-of-Interest Rules ........................................................... 2215 C. Discretion-Structuring Norms: Deliberative Presidency ........................................... 2221 D. Authority-Allocating Norms .......................................................................................... 2230 1. Going Public ............................................................................................................... 2231 2. Chief Legislator .......................................................................................................... 2234 3. Controlling Administrative Policymaking .............................................................. 2236 4. Interaction with Partisanship Norms ..................................................................... 2237 E. Conclusion: Structural Norms of the Presidency ....................................................... 2239 III. JUDICIAL ENFORCEMENT: POTENTIAL APPROACHES ............................................ 2242 A. Non-Enforcement ............................................................................................................ 2244 B. Direct Enforcement ......................................................................................................... 2247 C. Indirect Enforcement ..................................................................................................... 2254 1. Recognizing Norms .................................................................................................... 2255 2. Adjusting Institutional Choice ................................................................................ 2255 D. Defending a Limited Judicial Role ............................................................................... 2265 IV. PRESIDENTIAL NORMS BEYOND THE COURTS ......................................................... 2273 A. The “Lawness” of Structural Norms ............................................................................. 2274 B. Constructing Presidential Representation ................................................................... 2275 C. A System of Norm Enforcement .................................................................................... 2278 CONCLUSION: STRUCTURAL NORMS BEYOND ARTICLE II ............................................ 2281 2187 PRESIDENTIAL NORMS AND ARTICLE II Daphna Renan∗ The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. This Article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself. The role of presidential norms in constituting a working government raises pressing questions for public law theory. One of those questions is this: What happens when such norms break down — when the extralegal system ceases to enforce them? The Article sketches a spectrum of judicial responses, each of which finds occasional (though often implicit) support in the case law. It argues that the norms of the presidency and of the judiciary interact. Norms supply descriptive features of the institutional presidency upon which practices of judicial deference are sometimes premised. When those presidential norms collapse, judicial practice appropriately adjusts. Courts, however, remain limited players in a norm-based constitutional order. Presidential norms often do not implicate a judicially enforceable legal claim. And the more society depends on courts to check norm breaching by the president, the more fragile judicial norms (such as norms of judicial ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Assistant Professor, Harvard Law School. From 2009 to 2012, I served in the Justice Department as Counsel to the Deputy Attorney General and then as an Attorney Advisor in the Office of Legal Counsel. The views expressed are my own and the discussion is based only on publicly available materials. For generous engagement with this project at various stages, I am grateful to Kate Andrias, Nicholas Bagley, the Hon. David J. Barron, Bob Bauer, Niko Bowie, Curt Bradley, Jessica Bulman-Pozen, Adam Cox, Andrew Crespo, the Hon. Mariano-Florentino Cuéllar, Ashley Deeks, Chris Desan, the Hon. Harry T. Edwards, Dick Fallon, David Fontana, Chris Fonzone, Jerry Frug, Jake Gersen, John Goldberg, Jack Goldsmith, Tara Leigh Grove, Scott Hershovitz, Sam Issacharoff, Vicki Jackson, Liz Kamali, Mike Klarman, David Kris, Daryl Levinson, Anna Lvovsky, John Manning, Gillian Metzger, Frank Michelman, Martha Minow, Eric Posner, Jeff Powell, David Pozen, Richard Primus, Sabeel Rahman, Aziz Rana, Judith Resnik, Cristina Rodriguez, Shalev Roisman, Ben Sachs, David Schleicher, Larry Schwartztol, Walter Shaub, Neil Siegel, Mila Sohoni, Matthew Stephenson, Cass Sunstein, Oren Tamir, Mark Tushnet, Adrian Vermeule, and workshop participants at Columbia, Duke, Harvard, the University of Minnesota, Northwestern, Suffolk, and the 2018 Legislation Roundtable. For excellent research and editorial assistance, I thank Grayson Clary, Max Gottschall, Maddy Joseph, Elias Kim, Cate McCaffrey, Steve Schaus, and the editors of the Harvard Law Review. For tireless help tracking down sources, I thank Harvard Law research librarian AJ Blechner. 2188 2018] PRESIDENTIAL NORMS 2189 independence) may become. The Article concludes by examining the extrajudicial legal, political, and institutional conditions that sustain, or erode, the norm-based presidency. INTRODUCTION The nature of the presidency in American constitutional governance cannot be understood without reference to norms.1 These unwritten or informal rules of political behavior provide the infrastructure that any particular President inhabits.2 Presidential power is both augmented and constrained by these unwritten rules of legitimate or respectworthy behavior.3 Consider a few examples: The President is the nation’s chief law enforcer but a norm in- sulates individual investigatory decisions from the President.4 Norms deem the President bound by a conflict-of-interest statute that, by its terms, excludes the President from coverage.5 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Cf. Richard Primus, Unbundling Constitutionality, 80 U. CHI. L. REV. 1079, 1081–82 (2013) (distinguishing between a “small-c” approach that regards the constitution as “the web of docu- ments, practices, institutions, norms, and traditions that structure American government,” and the “big-C” approach that is rooted in constitutional text and judicial review, id. at 1082); cf. also K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 3–4 (1934). 2 Unwritten rules travel under different labels. Professor Jon Elster has used the term “unwrit- ten constitutional norms.” Jon Elster, Unwritten Constitutional Norms 2 (Feb. 24, 2010) (unpublished manuscript) (on file with the Harvard Law School Library) [https://perma.cc/YPN8- 764G]. Legal scholars, working off of the Commonwealth experience, often use the label constitu- tional “conventions.” See, e.g., David E. Pozen, Self-Help and the Separation of Powers, 124 YALE L.J. 2, 27 (2014); Adrian Vermeule, Conventions of Agency Independence, 113 COLUM. L. REV. 1163, 1163 (2013) [hereinafter Vermeule, Conventions]; Adrian Vermeule, The Third Bound, 164 U. PA. L. REV. 1949, 1949 (2016) [hereinafter Vermeule, Third Bound]; Keith E. Whittington, The Sta- tus of Unwritten Constitutional Conventions in the United States, 2013 U. ILL. L. REV. 1847, 1869; see also Mark Tushnet, Constitutional
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