Monday, November 30, 2020

What is the Presidency?

Guest Blogger

For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).

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 

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