How can Potus use the power of the bully pulpit to advance policy wishes?

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 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.

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. This Article aims to propose some such principles—both for courts presented with presidential speech, and for executive branch lawyers advising on the potential consequences of presidential statements.

Some presidential speech is legally operative, of course: the granting of a pardon, for example, or the issuance of a veto.[12] And much more is purely expressive.[13] But there exists a vast expanse between those two poles, and what courts do with presidential utterances in that middle space can shed new light on the relationship between the President and administrative agencies, and on debates in administrative law, the separation of powers, and constitutional law more broadly.

As I argue in what follows, binding Presidents to their claims and representations has an undeniable appeal. But for the most part it is a category error for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. The general principle of non-reliance, however, should give way under several circumstances: first, where the President clearly manifests an intent to enter the legal arena; second, where presidential speech touches on matters of foreign affairs; and third, where presidential speech supplies relevant evidence of government purpose, and government purpose is a component of an established legal test.

This Article proceeds as follows. Part I provides background and context: It first walks through the most important work by social scientists—primarily political scientists and communications scholars—on what is known in those fields as “the rhetorical presidency.” It then provides an account, drawn from memoirs as well as scholarship, of the institutional context in which presidential speeches are crafted. Part I therefore remains tightly focused on the speech aspect of this project. Part II shifts the focus to the other side of the equation—the type of action on which presidential speech may be deemed to have some bearing. So it first addresses agency action, describing key administrative law debates regarding the relationship between the President and the administrative state. It then discusses direct presidential action in the form of executive orders and other similar tools. Finally, it considers the role of the President in the legislative process.

With the stage thus set, Part III identifies the forms of presidential speech that appear in judicial opinions, across a range of cases and subject matter areas. It also asks what light principles of deference and evidentiary principles can shed on judicial treatment of presidential speech. Part IV then examines the intersection of internal executive branch dynamics and judicial treatment of presidential speech. Finally, Part V turns more fully to the normative, offering a series of recommendations, sensitive to institutional dynamics, to guide judicial use of presidential speech in the courts. In brief, Part V argues that only presidential speech that manifests some intent to enter the legal arena should give rise to judicial reliance, and that under most circumstances, presidential statements should yield to other, more carefully considered and crafted executive branch statements where there is tension between the two. But those general principles are subject to exceptions: where presidential speech touches on matters of foreign affairs, or where government purpose is a component of a legal test and presidential statements may supply relevant evidence of that purpose.

Several caveats are in order before proceeding further. First, this Article does not directly weigh in on judicial treatment of modes of direct presidential action like executive orders, presidential memoranda, presidential proclamations, and the like. Though I do consider such sources both insofar as presidential speech might bear on judicial treatment of them, and to draw out their relationship to presidential speech as a distinct category, my primary interest is in statements that fall short of the degree of formality attached to those categories of statements; accordingly, I focus on speeches alone.[14] One important unifying feature is the spokenness of such addresses (though all are subsequently recorded).[15] Some political scientists demarcate this category as spoken popular presidential communication (SPPC).[16] Here, the fact that such rhetoric is spoken provides a way to distinguish it from other rhetorical content that emanates from the White House.[17] The spokenness may also be independently relevant, since speaking often has an improvisational quality that renders it unique among types of presidential discourse.[18]

Second, courts often invoke speech not just by Presidents but also by other senior executive branch officials. Although this Article is primarily concerned with speech by the President, from time to time I also refer to statements by officials other than the President, particularly in the handful of Supreme Court cases I discuss.

Third, I do not consider presidential speech as it might bear on a President’s personal liability—for example, in a pending case accusing then-candidate Trump of inciting violence at a campaign rally.[19]

Finally, I have deliberately avoided limiting my consideration of presidential statements to speech that is expressly about law. Presidential speech, perhaps uniquely in our political landscape, can straddle the worlds of law, politics, and policy, and any attempt to limit this project to speech that makes expressly legal claims would both circumscribe the scope of the analysis and present hopeless problems of line drawing. At base, I hope this discussion—of speech that resists easy categorization as law or not-law, treated by courts in ways that are similarly impervious to easy or clear definition—contributes to the body of work on the complex relationship between the worlds of law and politics.[20]

I. Background

Rhetoric is a central feature of the presidency.[21] Many of the grants of authority (as well as duties) in Article II’s spare provisions have explicitly rhetorical dimensions. The power to request the opinion in writing of any executive officer[22] is fundamentally rhetorical in nature, as is the obligation to provide information to Congress, and to recommend to its consideration “such Measures as [the President] shall judge necessary and expedient.”[23] The President, alone among constitutional actors, is constitutionally required to recite a particular oath before entering into the office;[24] by constitutional command, his own words call the office into being. And every presidency begins with an inaugural address. The first time Americans encounter their President as President is in the context of speechmaking.[25]

Although speechmaking has always been an important presidential exercise, both the form and substance of presidential speech have evolved considerably over time. This Part first surveys the key literature on what political scientists describe as the “rhetorical presidency.” It then turns to an institutionally grounded examination of the circumstances in which presidential speeches take shape.

A. Presidential Speech: A Brief Historical Account

Much of the literature on the rhetorical dimensions of the presidency begins from the influential account of political scientist Jeffrey Tulis. Tulis traces the emergence of what he terms “the rhetorical [P]residency” to the Administrations of Theodore Roosevelt and Woodrow Wilson,[26] both of whom played major roles in reshaping the institution from one that abjured the use of popular rhetoric to one in which popular or mass rhetoric was understood as a “principal tool of presidential governance.”[27] On Tulis’s telling, the transformation has been so complete that today it is “taken for granted that Presidents have a duty constantly to defend themselves publicly, to promote policy initiatives nationwide, and to inspirit the population.”[28]

According to Tulis, the founding-era vision of presidential rhetoric was characterized by four core themes: concerns about the dangers of demagoguery;[29] the founders’ considered choice to create a primarily representative, rather than direct, democracy;[30] the paramount importance of an independent Executive, whose authority derives directly from the Constitution;[31] and a separation-of-powers vision in which the President’s role was both marked by “energy and ‘steady administration of law,’” and in which the need for compromise in light of the overlapping and conflicting authority of Congress and the President served as a disincentive to rhetorical appeals.[32] These broad principles resulted in “[t]wo general prescriptions for presidential speech”:[33] first, that “policy rhetoric . . . would be written, and addressed principally to Congress”;[34] and second, that presidential speech that was directed to the people at large, like proclamations and inaugural addresses, would “emphasize[] popular instruction in constitutional principle and the articulation of the general tenor and direction of presidential policy, while tending to avoid discussion of the merits of particular policy proposals.”[35]

Tulis argues that these general themes informed the rhetorical strategies of every nineteenth-century President but Andrew Johnson, who alone “did not adhere to the forms and doctrine of the nineteenth-century constitutional order.”[36] On Tulis’s account, the exception proves the rule, because Johnson was impeached based in part on the style and content of his speeches.[37]

Although both Abraham Lincoln and Andrew Johnson used speechmaking to advocate policy positions more than their predecessors had, it was not until the presidencies of Theodore Roosevelt, William Howard Taft, and most significantly Woodrow Wilson that presidential speechmaking acquired its modern character. Beginning with Theodore Roosevelt, “twentieth century [P]residents have been increasingly willing to use their office to rally public support behind their policy positions,”[38] and Wilson essentially established the practice that has continued to this day.[39]

Throughout his account, Tulis focuses on two distinct aspects of presidential speech: audience and content. In terms of audience, he traces the transition from Congress to the general public—courts as such do not enter the picture. In terms of content, he describes a shift from general articulations of constitutional principles to persuasive exercises designed to articulate and defend particular policy proposals.[40]

To be sure, others have both built on and challenged Tulis’s theory. Samuel Kernell suggests that the change Tulis identifies is mostly traceable to developments in partisanship and the media environment,[41] rather than a particular Wilsonian vision of the presidency that reshaped the office in its image. Doris Kearns Goodwin identifies Teddy Roosevelt, rather than Wilson, as primarily responsible for the transformation.[42] Keith Whittington cautions that “[t]he rhetorical presidency offers one mechanism for characterizing presidential practice and the sources of presidential authority. . . . [It] is simply one approach to understanding how and why presidents conduct their office and how presidents relate to the larger constitutional structure.”[43] And a recent literature suggests that increasing polarization has undermined the power of presidential rhetoric, so that Presidents today speak primarily to those whose support they already command.[44] Still, despite these critics, Tulis’s continues to be the definitive political science account of the role of rhetoric in the relationship between the presidency and the public.

B. Presidential Speeches: An Institutional and Procedural Overview

The presidency is an inherently dynamic institution,[45] and the institutional context out of which presidential speeches emerge is no exception. But all Presidents have given speeches, and most Presidents have relied to some degree on the assistance of others in preparing those speeches.[46] And, since at least the Administration of FDR, the President has been just one player in a larger White House operation responsible for producing the President’s words.[47]

Existing memoirs about presidential speechwriting in the modern White House[48] make clear how time-pressed and chaotic the process of crafting presidential speeches can be. As Reagan speechwriter Peggy Noonan tells it, much of the time speeches were subject to a thorough process of circulation, input, and clearance, with major speeches “sent out to all of the pertinent federal agencies and all the important members of the White House staff and the pertinent White House offices.”[49] But even with such processes in place, “the final battle would be fought on the plane, in the limousine, on the couch in the Oval Office. The speech was never really frozen until the President had said it . . . .”[50] And Michael Waldman, former head speechwriter for President Clinton, tells a number of stories of last-minute changes,[51] discarded drafts mistakenly delivered as final speeches,[52] and a significant improvisational component to presidential speechmaking, at least as practiced by President Bill Clinton.[53] Clinton speechwriter David Kesnet echoes this, suggesting that something like 25% of President Clinton’s delivery was extemporaneous.[54]

Notwithstanding the frequent informality and time pressures that attend their crafting, presidential speeches can be an important site of policy development. As one unidentified former White House Chief of Staff explained:

I used to think before I went to the White House,  . . . that you made policy decisions and then you wrote a speech to describe the policy. . . . Oftentimes it doesn’t work that way. Oftentimes, the fact of scheduling the speech drives policy . . . . It’s the fact of having scheduled a time, a locale where he’s going to talk about a certain issue that forces the policymakers in the [A]dministration, including the President himself, to make decisions.[55]‬

These drivers and constraints mean that policy announcements can be made, perhaps even inadvertently, in insufficiently considered or cleared speeches.[56] In addition, time pressure and relatively fluid processes mean that sophisticated bureaucratic players may use presidential speeches to bypass complex policy-development processes and lay down policy markers that the rest of the executive branch is then largely bound to implement.[57]

Internal White House dynamics can have a significant impact on the final output of the speechwriting process. Some social scientists have attempted to measure the impact of such dynamics. A recent contribution uses archival materials to chart the evolution of a 1992 speech by President George H.W. Bush announcing an intent to veto a tax bill.[58] Reviewing various iterations of the speech and staff memos, the authors conclude that the documents reveal that “two key sources of power within the White House—speechwriters and policy advisors—vie for control over the words of the President.”[59] Reviewing drafts of both the formal “Statement of Administration Policy” or SAP (about which more below) and President Bush’s speech announcing his intent to veto the bill, the authors tally advisor inputs both qualitatively and quantitatively, ultimately concluding that presidential speechwriters have a significant edge over policy advisors on the final product.[60]

This particular 1992 speech may have involved more rigor and formality than many presidential speeches. That is because where a presidential speech involves pending legislation and will simultaneously serve as a SAP, a formal review process conducted by the Office of Management and Budget (OMB) precedes finalization of the message.[61] This clearance process involves coordination within OMB, as well as “the agency or agencies principally concerned, and other [Executive Office of the President (EOP)] units.”[62] Ordinary speeches may be subject to an analogous process run by the White House Staff Secretary or the speechwriting office, but White House practice on this has varied.[63]

In addition, State of the Union addresses, which are both constitutionally grounded[64] and serve as major political events,[65] often involve more rigorous processes than ordinary presidential speeches.[66] But even the contents of State of the Union addresses may not always be carefully developed,[67] or may be subject to last-minute changes, extemporaneous additions or changes, or both.[68]

As a general matter, then—with the potential exception of SAPs and perhaps State of the Union addresses—presidential speechwriting is characterized by a degree of fluidity and informality.

This actually stands in contrast to other White House processes. Although not subject to process requirements comparable to actual rulemaking,[69] a degree of rigor attends many White House policy development processes. As discussed, OMB coordinates a clearance process for SAPs; both OMB and its component, the Office of Information and Regulatory Affairs (OIRA), coordinate on other processes as well, including circulating congressional testimony for interagency and White House review.[70] And an especially regimented system of policy development and approval occurs in the foreign policy and national security spheres, where a statutory scheme set forth in the 1947 National Security Act,[71] together with a number of related presidential directives,[72] prescribe a high degree of formality and rigor.[73] This means that speechwriting on national security and foreign policy topics looks quite different from the picture sketched above.

By presidential directive, the National Security Council (NSC) is the “principal means for coordinating executive departments and agencies in the development and implementation of national security policy.”[74] The NSC’s decision-making process typically proceeds through three levels.[75] The first, a staff-level process known as an Inter-Agency Policy Committee or IPC,[76] is designed to “serve up key issues for resolution or approval at the second level.”[77] That second level is the “Deputies Committee,” composed of deputy-level officials (Deputy Secretaries, the Deputy Attorney General, etc.).[78] The third level is the “Principals Committee,” composed of Cabinet or Cabinet-level officials designated by presidential directive.[79] The Principals Committee works “to ensure that, as much as possible, policy decisions brought to the President reflect a consensus within the departments and agencies.”[80] Finally, issues are brought to the President for final decision.[81] This means that policy development on national security issues is typically subject to extended, serious, and careful consideration. National security and foreign policy speechmaking is very much a part of this process, so that “[w]hen the President makes foreign policy statements, meets with visiting heads of state, travels abroad, or holds press conferences dealing with national security his words usually have been carefully crafted and are the result of lengthy and detailed deliberations within the [A]dministration.”[82] All of this means there may be reason to treat speeches that emerge from this process differently from other speeches.[83]

The discussion here suggests that there may be good reason for caution about excessive reliance on presidential speech—with a slightly different set of standards, for the institutional reasons detailed above, for speech in the national security and foreign affairs context.

II. Presidential Administration, Direct Presidential Action, and Presidential Speech in the Legislative Process

The preceding Part focused on one piece of this puzzle—presidential speeches themselves. But just as important is the type of action being tested—that is, the underlying conduct or directive at issue, and on which presidential speech may have some bearing. Accordingly, this Part first sketches the figure of the President in administrative law, focusing on some of the key inflection points in debates about the relationship between the President and the administrative state, and the intersection between those debates and judicial treatment of presidential speech. It next describes the primary modes of direct presidential action, also with an eye toward the role of presidential speech. Finally, it looks to the role of presidential speech in the legislative process.

A. The President in Administrative Law

One of the contexts in which presidential speech may be invoked is in the course of judicial review of some agency action.[84] It is, therefore, impossible to assess judicial treatment of presidential speech without engaging with several aspects of the relationship between the President and the administrative state. More specifically, the question of what effect courts should give presidential speech intersects with two distinct (though related) debates about the President in administrative law: first, the degree to which the President possesses directive authority vis-à-vis administrative agencies; and second, whether and how presidential involvement in agency decision-making should impact judicial deference to agency decisions, and relatedly, whether presidential interpretations are themselves entitled to any sort of deference.

The President, of course, is the head of the executive branch within which administrative agencies sit. But beyond that, the proper relationship between the President and those agencies—in particular, whether the President may direct those agencies in the exercise of their delegated authority, either some or all of the time—has long divided scholars. Peter Strauss succinctly describes two key camps in the title of his piece “Overseer or ‘the Decider’?”[85] In brief, partisans of the position that the President is a “decider” contend that when a statute delegates authority to an agency official, the President generally retains directive authority—that is, “the power to act directly under the statute or to bind the discretion of lower level officials”[86]—either presumptively or as a categorical matter.[87] Then-Professor Elena Kagan’s influential Presidential Administration, which both identified and celebrated a shift toward presidential control and ownership of regulatory output, is perhaps most closely associated with this view.[88] (As I will return to later, one important additional aspect of her narrative is presidential appropriation of the output of regulatory processes.[89]) Subscribers to the “overseer” view argue that, absent statutory authority to the contrary, when Congress makes a delegation to an agency official, that delegated authority resides with the agency official alone.[90] According to these critics, Presidents may attempt to utilize other tools to impact agency output, but may not direct any particular course of action outright.

As a matter of practice, the line between the two may not always be clear, since, as Professor Strauss explains, “[t]he difference between oversight and decision can be subtle, particularly when the important transactions occur behind closed doors and among political compatriots who value loyalty and understand that the President who selected them is their democratically chosen leader.”[91] But, he continues, “there is a difference between ordinary respect and political deference, on the one hand, and law-compelled obedience, on the other.”[92]

This debate leads naturally to the second, which involves the impact of presidential involvement on judicial scrutiny of agency action. Kagan’s Presidential Administration argues that although “courts . . . have ignored the President’s role in administrative action in defining the scope of the Chevron doctrine,”[93] in fact “Chevron’s primary rationale suggests [an] approach . . . which would link deference in some way to presidential involvement.”[94] In other words, presidential involvement, under Chevron as properly understood, should heighten the degree of deference courts grant to agencies. The piece makes a similar argument with respect to “hard look” review, suggesting that courts should “relax the rigors of hard look review when demonstrable evidence shows that the President has taken an active role in, and by so doing has accepted responsibility for, the administrative decision in question.”[95]

A number of recent pieces grapple with the related issue of how political considerations—not synonymous with, though related to, presidential involvement—should impact judicial review of administrative action. Kathryn Watts has offered a proposal under which “what count as ‘valid’ reasons under arbitrary and capricious review” would include under some circumstances “political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed.”[96] A number of scholars have endorsed this or related proposals,[97] though others have sounded a cautionary note about this “political turn” in administrative law scholarship.[98]

Now for deference to the President himself. Although presidential statements can come in a variety of forms, Peter Strauss argues that, with respect to statutory interpretation, presidential interpretations are not entitled to Chevron deference, with rare exceptions, because the President is not an agency with the authority to interpret a statute.[99] Cass Sunstein has suggested that perhaps “the President himself is entitled to deference in his interpretations of law, even if he has not followed formal procedures,”[100] if he is acting pursuant to a delegation. And Kevin Stack argues that “the President’s constructions of delegated authority should be eligible for Chevron deference, but only when they follow from statutes that expressly grant power to the President,”[101] and perhaps subject to a requirement of reason-giving.[102]

Taken together, these debates may well have implications for presidential speech. That is, if the President is properly understood to be empowered, either as a matter of constitutional imperative or prevailing norms and practices, to direct agency action—and if the theoretical foundations of Chevron actually counsel in favor of deeper deference to agencies when the President is involved in agency decision making—it might seem to follow that presidential interpretations or views themselves would be a fortiori entitled to a degree of solicitude, even if not formal deference. On the other hand, if the President lacks the power to direct agency action, presidential remarks that bear on agency action would seem largely irrelevant, or at least lacking in any formal legal effect. And even if the President is understood as possessing directive authority, there is an argument that the President should be required to impose his interpretations on agency actors via internal executive branch channels, rather than by announcing his views separately in the hopes that courts will give them legal effect. As the Parts that follow show, presidential speechmaking can clash with agency representations and even actions, as well as representations made by DOJ in litigation, and nothing in the literature provides clear guidance as to how courts should resolve such disagreements when they arise.

B. Direct Presidential Action

Modern Presidents also exercise a degree of power largely independent of the apparatus of the administrative state, and direct presidential action both bears some resemblance to, and also may intersect with, presidential speech. Direct presidential action can take a number of forms: executive orders and presidential memoranda,[103] proclamations,[104] and executive agreements,[105] to list a few. Although “[t]he U.S. Constitution does not explicitly recognize any of these policy vehicles,”[106] they are now well-established tools within the President’s arsenal. My interest in this category of action is twofold. First, a clear sense of the nature and scope of direct presidential action is necessary before we can assess the implications of any use of presidential speech in evaluating such action. But I am also interested in what these modes of presidential action have in common with presidential speech—since much of the time they take effect through documents that are communicative or expressive, but with more clearly established (though not uncontroversial) legal effect.

The scope of the category of direct presidential action is subject to some debate. In his volume Power Without Persuasion, William Howell defines “direct presidential actions” as “the wide array of public policies that Presidents set without Congress.”[107] Although he focuses the bulk of his analysis on executive orders, his definition is quite expansive, including non-public or classified documents like national security directives.[108] Howell argues that over the past half-century, “the trajectory of unilateral policy making has noticeably increased. While it was relatively rare, and for the most part inconsequential, during the eighteenth and nineteenth centuries, unilateral policy making has become an integral feature of the modern Presidency.”[109] The Office of Legal Counsel has advised that executive orders and presidential directives have the same legal effect, and that, in general, there is “no basis for drawing a distinction as to the legal effectiveness of a presidential action based on the form or caption of the written document through which that action is conveyed.”[110]

Of the existing modes of presidential action, the literature is most developed when it comes to executive orders. Though jurisdictional obstacles often preclude judicial review of executive orders,[111] and presidential orders are not subject to APA review, some challenges to executive orders do proceed to adjudication. Where they do, existing analyses find that courts are for the most part quite deferential to the Executive. Howell’s analysis of the fate of executive orders in court finds that “[f]ully 83% of the time, the courts affirmed the President’s executive order,”[112] and that “[o]nly when Congress explicitly forbids the President from taking certain actions, and public attention is high, will judges overturn the Chief Executive.”[113] A recent note updates that figure through 2013, finding that of a database of 152 Supreme Court and D.C. Circuit cases involving challenges to executive orders, the federal government prevailed over 70% of the time; when the case featured a “foreign relations component,” the figure rose to over 90%.[114]

Presidential action can also occur across a range of subject matters, with sometimes significant impact. Executive orders have created the Executive Office of the President,[115] desegregated the armed forces,[116] attempted to seize private steel mills,[117] and authorized broad intelligence collection,[118] to name just a few consequential examples.

In addition to their range and generally successful track record in court, presidential orders can have an important communicative or expressive dimension. A recent example comes from the passage of the 2010 Affordable Care Act. After nearly a year of negotiations over the bill, the final obstacle to passage appeared to be concerns raised by a number of House members opposed to abortion—including some Democrats—about the prospect of federal funds being used for abortion services.[119] The impasse was eventually broken when President Obama agreed to issue an executive order that reaffirmed the substance of the Hyde Amendment,[120] which since 1976 has prohibited the use of federal funds for abortion,[121] and directed the Department of Health and Human Services (HHS) to set up a mechanism to ensure compliance with the statutory prohibition. The executive order is widely credited with having removed the final obstacle to passage of the bill,[122] and it was arguably its expressive content—announcing governmental opposition to federal funding of abortions—rather than its formal legal effect that was ultimately responsible. Another example from the Obama Administration is a 2010 Presidential Memorandum on hospital visitation. The Memorandum directed the Secretary of HHS to undertake a rulemaking that would require hospitals to allow patients to designate individuals to participate in their medical decisions.[123] Although both the language of the Memorandum and the final rule[124] swept broadly, the impetus for the undertaking was a widely reported incident in which a Florida hospital denied a woman access to the bedside of her dying partner, a woman with whom she shared four children.[125] Most striking for these purposes was the tone of the memorandum, which read more like a speech than a legal directive. It began,

There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean—a loved one to be there for us, as we would be there for them.[126]

The Memorandum continued in a similar vein for a few paragraphs before the appearance of the operative language directing the rulemaking. As the examples above illustrate, these modes of direct presidential action actually bear some resemblance to presidential speeches.

Of course, there is a degree of fiction in describing any of the foregoing as “direct” presidential action. The President does not, of course, typically draft executive orders or similar documents himself; depending on subject matter, that task may be performed by lawyers in the Office of Management and Budget, the White House Counsel’s Office, or a component of DOJ or another agency.[127] But the President actually considers such documents and, importantly, affixes a signature.[128] This is similarly true of the modes of direct presidential action at issue in several of the lower-court cases discussed in the next Part—presidential action in the national security sphere, in particular targeting (like the Al-Aulaqi case I discuss at length in the next Part) and detention at Guantanamo Bay. When it comes to both targeting and detention, the President does not, of course, personally take the ultimate actions subject to challenge.[129] But public reporting suggests, and executive branch statements confirm, that such actions involve actual presidential actions and determinations,[130] which distinguishes this conduct from most agency action.[131]

C. Presidential Speech and the Legislative Process

Finally for this Part, I briefly address presidential speech in the context of legislation. When it comes to legislative history—statements that are not themselves law, but are about law—the grooves of the debate are well worn. Some scholars advocate, and some judges pledge fealty to, a position of zero tolerance;[132] some embrace the potential relevance of all such materials;[133] and many, perhaps most, take sort of a middle ground, evidencing a willingness to give some weight under some circumstances to certain materials but not others.[134] Statements by executive branch officials, when they do appear in discussions of the interpretation of statutes, appear as simply a subset of the larger category of legislative history.[135]

Presidential signing statements—the “short documents that Presidents often issue when they sign a bill”[136]—have been the subject of extensive scholarly debate.[137] These instruments in some ways straddle the spheres of substantive law and legislative history. Though there is no question that they play an important part in influencing executive branch actors charged with law implementation,[138] scholars and judges take a range of positions on the extent to which signing statements should carry force in court.

But it may be worth looking beyond signing statements to consider more broadly presidential statements as a distinct source of authority when it comes to the interpretation of statutes.[139] The Constitution’s Recommendations Clause imposes on the President the obligation to recommend legislation to Congress.[140] So, where draft legislation originates in the executive branch, there is an argument that statements by the President or other relevant executive branch officials should be deemed especially relevant to the interpretive task. The Supreme Court has recognized that the President “may initiate and influence legislative proposals”[141] and has cited presidential statements in canonical statutory interpretation cases.[142] But neither courts nor scholars have provided well-developed descriptive or normative accounts of the role of presidential speech when it comes to the judicial task of interpreting statutes.[143]

III. Presidential Speech in the Courts

A. The Forms of Presidential Speech: A Taxonomy

This Part turns to presidential speech itself. For purposes of this project, the statements Presidents make[144] can be divided into several distinct categories: views on constitutional power or authority; views on statutory meaning or purpose; statements that might bear on the meaning or purpose of executive action; statements of conclusions with specified legal consequences; and statements of fact, either legislative or adjudicative. The subparts below describe judicial encounters—both in the Supreme Court and lower courts—with presidential speech in each of these categories.[145]

1. Constitutional Power or Authority.—First, presidential speech may directly address constitutional power or authority. The Supreme Court’s opinion in the presidential-power case Myers v. United States[146] supplies perhaps the best example of judicial reliance on this sort of presidential speech. In its decision striking down a statute that required the President to obtain Senate approval before removing a postmaster, the Myers Court cited statements by no fewer than five Presidents; all were made in speeches, and all expressed doubts about the constitutionality of laws requiring congressional consultation or approval prior to removal.[147] These included a speech by President Jackson explaining that “[t]he President in cases of this nature possesses the exclusive power of removal from office,”[148] and a similar statement by President Wilson, who contended that “the Congress is without constitutional power to limit the appointing power and its incident, the power of removal, derived from the Constitution.”[149]

In contrast to Myers, an infrequently cited fragment of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer[150] strikes a cautionary note about the relevance, in a constitutional case, of executive branch speech delivered both in the spirit of advocacy[151] and in a decidedly nonjudicial setting. In the relevant passage, Justice Jackson brushed away the significance of statements made by a previous Attorney General (as it happened, Jackson himself) defending President Roosevelt’s seizure of the Inglewood Plant of North American Aviation.[152] Justice Jackson explained that “a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.”[153]

Two of the opinions in Hamdan v. Rumsfeld[154] clashed quite explicitly over the significance of executive branch statements to the case before the Court. Dissenting from the majority opinion invalidating the use of military commissions, Justice Thomas criticized the majority’s conclusion that the military commissions’ failure to comply with the requirements for courts-martial doomed them. According to Justice Thomas, the majority agreed that “the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not ‘practicable’ to prescribe uniform rules.”[155] And, Justice Thomas explained, the President had made such a determination here; as evidence, Justice Thomas offered press statements by the Secretary and Under Secretary of Defense describing the President’s conclusion and motivation.[156] Writing for the majority, Justice Stevens responded sharply to Justice Thomas’s argument: “We have not heretofore, in evaluating the legality of executive action, deferred to comments made by [executive branch] officials to the media.”[157]

Many of the invocations of presidential speech in these cases seem to employ such speech as a component of a separation-of-powers “historical gloss” analysis, of the sort Justice Frankfurter urged in Youngstown.[158] Together, they suggest that one underappreciated element of gloss analysis may be statements made by Presidents or other executive branch officials. But no clear principles distinguish cases in which such statements will be deemed relevant and those in which they will not.

Indeed, in some constitutional cases, presidential statements appear in briefing or oral argument, but are conspicuously absent from a court’s final opinion. NFIB v. Sebelius[159] represents the most high-profile example in recent memory. The presidential remarks of interest in that case appeared in an interview with ABC’s George Stephanopoulos. In response to Stephanopoulos’s questions, President Obama maintained that the penalty attached to the Affordable Care Act’s individual mandate “was absolutely not a tax increase.”[160] This comment soon appeared in a number of press accounts and opinion pieces.[161] A Virginia district court in Virginia v. Sebelius[162] asked a Department of Justice attorney to explain President Obama’s statements: “Let’s characterize it correctly, . . . [t]hey denied it was a tax. The President denied it. Was he trying to deceive the people?”[163] Similarly, before the Supreme Court, Justice Scalia pressed Solicitor General Don Verrilli on the President’s words, presumably (although not explicitly), in reference to the same interview:

JUSTICE SCALIA: The President said it wasn’t a tax, didn’t he? GENERAL VERRILLI: Well, Justice Scalia, what the—two things about that. First is, it seems to me, what matters is what power Congress was exercising. And they were—and I think it’s clear that the—they were exercising the tax power as well as the commerce power. JUSTICE SCALIA: You’re making two arguments. Number one, it’s a tax. And, number two, even if it isn’t a tax, it’s within the taxing power. I’m just addressing the first. GENERAL VERRILLI: What the President said— JUSTICE SCALIA: Is it a tax or not a tax? The President didn’t think it was.

GENERAL VERRILLI: The President said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.[164]