Presidential Laws and the Missing Interpretive Theory

From the abstract for Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, University of Pennsylvania Law Review, Vol. 168 (2020, Forthcoming):

There is something missing in interpretive theory. Recent controversies—involving, for example, the first travel ban and funding for sanctuary cities—demonstrate that presidential “laws” (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that cannot be right: Theories of interpretation depend on both constitutional law and institutional setting. For statutes, the relevant law comes from Article I and the procedures governing Congress. For presidential directives, the starting point must be Article II. This Article contends that Article II and the distinct institutional setting of the presidency point toward textualism. Article II, particularly the Opinions Clause, gives the President considerable power to structure the process by which he issues directives. Drawing on various sources—including the author’s interviews with officials from the Trump, Obama, and other administrations—this Article offers a window into that process. Since at least the 1930s, presidents have invited agency officials to draft, negotiate over, and redraft presidential directives. The final directive signed by the President may not reflect his ideal position; instead, presidents often issue compromise directives that reflect their subordinates’ recommendations. This Article argues that courts respect that structure, and hold presidents accountable for any mistakes, by adhering closely to the text. Thus, whatever one thinks about honoring the textual compromises that come from Congress, there are independent and important reasons to hew strictly to the text that comes from the White House. Notably, this analysis has important implications not only for interpretive theory but also for broader questions about the constitutional separation of powers. In an era of ever-expanding presidential power, presidents have at times (and surprisingly) allowed themselves to be constrained by their own administration.