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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What is the Presidency?
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Monday, November 30, 2020
What is the Presidency?
Guest Blogger
Daphna Renan What is the presidency in American public
law? Current debates tend to focus on the constitutional powers of the presidential
office and the authority of Congress to restrict them. In The President and
Immigration Law, Professors Adam Cox and Cristina Rodríguez argue that, if
the goal is to understand and assess presidential power in its contemporary
form, we are looking in the wrong place. Presidential power results from the mass
of statutory authorities—some broad and substantial, some textually specific or
seemingly inconsequential—developed over time. But if this power derives from the
interbranch process that underlies legislation, it is distinctively
presidential in practice. Presidents do not merely apply legal authorities when
they enforce statutes. Presidents reinvent these statutory schemes in “their
own lights” (p. 8). Conforming immigration enforcement to the principle of
legislative supremacy, the authors tell us, “would not just repudiate a few
initiatives of recent administrations”; rather, it would “call into question
the legality of decades of executive branch policymaking that has shaped the
very nature of the American polity” (p. 202). Presidential power thus emerges
from the discretion that presidents create in the interstices of complex
statutory regimes. The book’s central argument is
framed in connection to U.S. immigration law—and the descriptive account it
presents in that context is nuanced and illuminating. But its conceptual apparatus
is more far-reaching still. The modern presidency draws power not from some
founding-era conception of a royal prerogative but from the crevices of cumulative—at
times, contradictory—statutory material. There is nothing inherent or immutable
about this presidency. Nor anything “original” about its design. Instead, it is
the product of layers of contingent political battles and provisional
settlements. These legal understandings have a foothold in the myriad
provisions of the U.S. Code. But they are reinvented over time by the executive
branch itself, in ways that have enabled the presidency to implement, rethink,
and reimagine the substantive goals of the state. Public law’s focus on the contours
of Article II does little to elucidate this presidency, including its sources
of authority and constraint. As Professors Cox and Rodríguez argue, “the risks
associated with executive governance through enforcement do not arise because
the President’s power rests upon dangerous or novel legal theories about the
scope of his office. Instead, the risks result from the surge in core and
undisputed executive powers” (p. 215). Enforcement discretion, when exercised as
a tool of presidential administration, can effectuate important humanitarian and
justice-oriented goals. It can also, as we have painfully witnessed the past
four years, effectuate cruel and inhumane practices on a stunning scale. This, then, is presidential power in
the current era: It derives authorities, but not necessarily effective constraints,
through a patchwork of legislative enactments. Such a presidency might not
raise difficult problems under Article II. But it does pose a deep challenge for
public law itself. Prevailing theories of statutory
interpretation assume a shared commitment to legislative supremacy. Professors
Cox and Rodríguez reject this conception. Subtle and nuanced in its descriptive
mooring, their argument is deeply provocative as a normative vision of executive
branch legalism. Legislation, on the authors’ view, is not coextensive with
statutory authority. It is just a steppingstone to legal meaning—meaning that
is and should be constructed dynamically over time in ways that openly defy
what current theories of interpretation often assume to be the constraints of
either text or legislative purpose. The authors reject formalism or the
New Textualism’s assumption that textuality conveys the legal meaning of a
statute. “Uncertainty,” the authors tell us, “inheres in the legislative act,
and the concrete consequences and social meaning of the law will become
apparent only through its implementation. As a result, we should want an
Executive Branch with the power to manage a legal regime based on its own
judgment, forged through its experience overseeing that regime” (p. 207). If
the argument rejects the formalism of text-based inquiry, however, it is a
repudiation of purposivism as well. “Efforts to legally bind the Executive to
elusive or nonexistent congressional priorities . . . only obscure the reality
that executive branch officials regularly make their own decisions about the
scope of the state’s coercive authority,” the authors write (p. 200-201). As a
result, “identifying the line that separates enforcement discretion from
lawlessness depends on perception, instinct, and feel, not a clear legal
principle that can be derived through lawyerly analysis” (id.). There is much, I think, to admire in
this normative embrace of statutes as uncertain, unfinished, and fertile ground
for ongoing and creative elaboration by the executive branch—not merely at the
margins but at the very core of statutory regimes and in the pathways that they
open for shaping the American polity. But it is important to underscore how
dramatically this conception of statutory interpretation departs from the
field’s prevailing assumptions. As a normative account, then, this model raises
important questions about what it means to have a legal order so loosely
anchored to our written laws. If the boundary of legitimate enforcement
discretion entails “perception, instinct, and feel,” not lawyerly analysis, then
what is—and what should be—the role of legal interpreters both internal and
external to the presidency? Begin with the role of executive
branch lawyers. To be sure, the statutory-interpretation questions that
enforcement discretion invokes often do not have clear-cut legal answers. But
Professors Cox and Rodríguez are making a bolder claim than that. They argue
that now-entrenched executive branch practices are built on what initially would
have appeared to be quite thin, aggressive, and highly controversial understandings
of the law. The presidency did not simply implement these texts as written but
rather reimagined them and, normatively, the authors urge, this is a desirable feature
of our presidential governance. If the goal is not fidelity to some
legislative design—whether discerned through text or purpose or other lawyerly
tools—but rather moral leadership and sound substantive policymaking, however, then
what role should executive branch lawyers play in the deliberations—and
how should this exercise of legal discretion be structured? Should one
particular lawyer or law office (such as the head of the Office of Legal
Counsel) definitively decide questions of statutory construction, based on his
or her own views on competing canons of interpretation, for example, or other
modalities for discerning ambiguous statutory text? Or should executive branch
lawyers instead identify the strengths and vulnerabilities of competing legal
arguments, while creating space for a more policy-inflected presidential
judgment? Put differently, does a less legalistic understanding of the zone of
enforcement discretion require a different understanding of the role of executive
branch lawyering? And, if the boundary of permissible enforcement is one of
instinct and feel rather than lawyerly articulation, how can and should legal
norms and professional ethics guide the lawyer’s charge of boundary-marking? The force of presidential
enforcement discretion on the everyday lives of millions of individuals also
raises crucial questions about the role of courts and the tools of
administrative law. When enforcement discretion is centralized and
systematized, should it trigger the procedural safeguards of the Administrative
Procedure Act (APA), for example? If not, as the Obama administration
repeatedly argued, what is the normative basis to resist such procedural
protections for some of the most impactful decisions that the presidency and
the executive branch can make? Under what conditions should presidential and
executive interpretations of law, through the enforcement power, receive
judicial deference? And how, for purposes of administrative law, should we understand
the relationship between the presidency and agency enforcers? For example,
should legal arbitrariness review under the APA seek to hold the president himself
to a more meaningful form of political accountability, as
my colleague Professor Ben Eidelson has argued? Perhaps the most fundamental
questions that The President and Immigration Law invites, though, relate
to the nature of public law itself. Recent
work from historian Jonathan Gienapp unearths a debate, at the founding,
over the character of the U.S. Constitution: should the Constitution function
like “ordinary” law—in the sense of a finished document defined by its
textuality and underlying legal purpose—or did it represent something else
entirely, the ongoing, inherently unfinished work of “constituting” government.
Professors Cox and Rodríguez might be read to suggest a related question: In
the context of presidential administration, does the paradigm of “ordinary” law
itself exist? Or is this statutory order—which constitutes and is reconstituted
by the president’s enforcement power—unfinished, uncertain, and only thinly textual
all the way down? Daphna Renan is a professor of law
at Harvard Law School. You can reach her by e-mail at drenan at law.harvard.edu
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