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Beyond the Bully Pulpit: Presidential Speech in the Courts

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Beyond the Bully Pulpit: Presidential Speech in the Courts SHAW.TOPRINTER (DO NOT DELETE) 11/15/2017 3:32 AM Beyond the Bully Pulpit: Presidential Speech in the Courts Katherine Shaw* Abstract The President’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the President. The President speaks to the entire population, about the full range of domestic and international issues we collectively confront, and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: For at least a century, Presidents have used the bully pulpit to augment their existing constitutional and statutory authorities. 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 the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action. This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive branch dynamics can shed on judicial treatment of presidential speech. I then turn to the normative, arguing that for a number of institutional reasons, it is for the most part inappropriate for a court *Associate Professor of Law, Benjamin N. Cardozo School of Law. Note—as an attorney in the White House Counsel’s Office from 2009 to 2011, I worked on several of the matters discussed in this Article, but everything here is drawn entirely from the public record. I’m grateful to Kate Andrias, Will Baude, Richard Briffault, Josh Chafetz, Zachary Clopton, Neal Devins, Ryan Doerfler, Bill Eskridge, Barry Friedman, Jonah Gelbach, Bishop Grewell, Michael Herz, Jocelyn Getgen Kestenbaum, Anita Krishnakumar, Rebecca Kysar, Maggie Lemos, Leah Litman, Peter Markowitz, Justin Murray, Luke Norris, Deborah Pearlstein, Michael Pollack, John Rappaport, Alex Stein, Nick Stephanopoulos, Jeffrey Tulis, Steve Vladeck, and Michael Waldman for helpful conversations and comments on earlier drafts, and to participants in workshops at Pace Law School, the University of Chicago Law School, the University of Pennsylvania Law School, Yale Law School, and Cornell Law School. Kate Giessel, Alexander Grass, Sophia Gurulé, Michael Lynch, and Lekha Menon provided excellent research assistance. SHAW.TOPRINTER (DO NOT DELETE) 11/15/2017 3:32 AM 72 Texas Law Review [Vol. 96:71 to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. That general principle, however, is not absolute. Rather, in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate. That subset includes cases in which presidential speech reflects a clear manifestation of intent to enter the legal arena, cases touching on foreign relations or national security, and cases in which government purpose constitutes an element of a legal test. In light of the rhetorical strategies of President Donald Trump, the question of the impact of presidential statements in the courts is quickly becoming a critical one. SHAW.TOPRINTER (DO NOT DELETE) 11/15/2017 3:32 AM 2017] Beyond the Bully Pulpit 73 INTRODUCTION ............................................................................................ 73 I. BACKGROUND ....................................................................................... 79 A. Presidential Speech: A Brief Historical Account ...................... 80 B. Presidential Speeches: An Institutional and Procedural Overview ................................................................................... 83 II. PRESIDENTIAL ADMINISTRATION, DIRECT PRESIDENTIAL ACTION, AND PRESIDENTIAL SPEECH IN THE LEGISLATIVE PROCESS ................. 89 A. The President in Administrative Law ........................................ 89 B. Direct Presidential Action ......................................................... 93 C. Presidential Speech and the Legislative Process ....................... 97 III. PRESIDENTIAL SPEECH IN THE COURTS ................................................ 99 A. The Forms of Presidential Speech: A Taxonomy ...................... 99 1. Constitutional Power or Authority ........................................ 99 2. Statutory Meaning or Purpose ............................................ 103 3. Executive Action. ................................................................. 104 4. Statements with Direct Legal Effect. ................................... 110 5. Statements of Fact ............................................................... 114 B. Presidential Speech and Evidentiary Principles ...................... 118 C. Deference and Presidential Speech.......................................... 121 IV. PRESIDENTIAL SPEECH AND INTRA-EXECUTIVE DYNAMICS .............. 123 V. GUIDING PRINCIPLES ........................................................................... 129 A. Manifestation of Intent ............................................................ 129 B. Presidential Speech and Other Executive Branch Statements ................................................................................ 131 C. Presidential Speech in the Foreign Affairs and National Security Spheres ...................................................................... 134 D. Presidential Speech as Evidence of (Constitutionally Forbidden) Government Purpose............................................. 137 CONCLUSION .............................................................................................. 140 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 1. PEGGY NOONAN, WHAT I SAW AT THE REVOLUTION: A POLITICAL LIFE IN THE REAGAN ERA 68 (1990). 2. In Mary Stuckey’s words, “The President has become the nation’s chief storyteller, its interpreter-in-chief. He tells us stories about ourselves, and in so doing he tells us what sort of people we are, how we are constituted as a community. We take from him not only our policies but our national self-identity.” MARY E. STUCKEY, THE PRESIDENT AS INTERPRETER-IN-CHIEF 1 (1991) SHAW.TOPRINTER (DO NOT DELETE) 11/15/2017 3:32 AM 74 Texas Law Review [Vol. 96:71 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 (footnote omitted); see also CAROL GELDERMAN, ALL THE PRESIDENTS’ WORDS: THE BULLY PULPIT AND THE CREATION OF THE VIRTUAL PRESIDENCY 9 (1997) (“Speeches are the core of the modern presidency.”); MICHAEL WALDMAN, MY FELLOW AMERICANS xi (2003) (“[E]specially in the past century, Presidents have led with their words—using what Theodore Roosevelt called the ‘bully pulpit’ to inspire, rally, and unite the country.”). 3. E.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2125 (2016) (reviewing ROBERT A. KATZMANN, JUDGING STATUTES (2014)). For a social science perspective that also investigates the role of rhetoric, see José D.
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