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.
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.
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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.
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.
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:
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]
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]
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.
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--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.
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.
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.
Together, these cases suggest that some presidential or senior executive branch official speech will be deemed to have stand-alone legal significance, at least in instances where a statute or a judicial test so provides.
A due process challenge brought by relatives of Anwar Al-Aulaqi, a U.S. citizen who was killed by a U.S. drone strike in 2011, featured judicial invocation of presidential speech, arguably in both categories.
It appears, then, that at least some courts have accorded some sort of deference to presidential statements. But whether or not reliance is framed as deference, the next Part asks what a focus on internal executive branch dynamics can teach us about the wisdom or propriety of judicial reliance on presidential speech.
Perhaps the most interesting theoretical questions presented by judicial reliance on presidential speech involve intra-Executive or internal separation-of-powers dynamics.[279] These dynamics manifest in two distinct ways: First, they may involve tension between representations made in court by the Department of Justice, on the one hand, and statements made by the President in separate venues, on the other, bringing to the fore questions about the relationship between the White House and the Department of Justice. Second, one of the functions of presidential speech may well be both to communicate with agency officials, and to claim credit for agency output. So looking to the consequences of such speech in judicial fora provides new material relevant to debates about the scope, contours, and consequences of presidential administration.
As a general matter, the public is for the most part unaware of the internal distinctions that exist within the executive branch, and press coverage frequently elides them.[297] But courts, of course, should in general be aware of the distinctions between a President and other arms of the executive branch. It is striking, then, that even courts appear, at least at times, to be similarly conflating role or function.
There is something undeniably appealing about the idea of courts binding Presidents to their claims and representations, preventing them from speaking in one register at the bully pulpit and another in the courts of law. But I argue here that it is for the most part inappropriate for courts to rely on presidential statements offered in the spirit of advocacy, persuasion, or pure politics, where those statements do not reflect considered legal positions. That general principle, however, should give way in a subset of cases in which a degree of judicial reliance on presidential speech is entirely appropriate. 152ee80cbc
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