Separation of Powers Article 131 Harv. L. Rev. 2187

Presidential Norms and Article II


The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. This Article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself.

The role of presidential norms in constituting a working government raises pressing questions for public law theory. One of those questions is this: What happens when such norms break down — when the extralegal system ceases to enforce them? The Article sketches a spectrum of judicial responses, each of which finds occasional (though often implicit) support in the case law. It argues that the norms of the presidency and of the judiciary interact. Norms supply descriptive features of the institutional presidency upon which practices of judicial deference are sometimes premised. When those presidential norms collapse, judicial practice appropriately adjusts. Courts, however, remain limited players in a norm-based constitutional order. Presidential norms often do not implicate a judicially enforceable legal claim. And the more society depends on courts to check norm breaching by the president, the more fragile judicial norms (such as norms of judicial independence) may become. The Article concludes by examining the extrajudicial legal, political, and institutional conditions that sustain, or erode, the norm-based presidency.

* Assistant Professor, Harvard Law School. From 2009 to 2012, I served in the Justice Department as Counsel to the Deputy Attorney General and then as an Attorney Advisor in the Office of Legal Counsel. The views expressed are my own and the discussion is based only on publicly available materials. For generous engagement with this project at various stages, I am grateful to Kate Andrias, Nicholas Bagley, the Hon. David J. Barron, Bob Bauer, Niko Bowie, Curt Bradley, Jessica Bulman-Pozen, Adam Cox, Andrew Crespo, the Hon. Mariano-Florentino Cuéllar, Ashley Deeks, Chris Desan, the Hon. Harry T. Edwards, Dick Fallon, David Fontana, Chris Fonzone, Jerry Frug, Jake Gersen, John Goldberg, Jack Gold-smith, Tara Leigh Grove, Scott Hershovitz, Sam Issacharoff, Vicki Jackson, Liz Kamali, Mike Klarman, David Kris, Daryl Levinson, Anna Lvovsky, John Manning, Gillian Metzger, Frank Michelman, Martha Minow, Eric Posner, Jeff Powell, David Pozen, Richard Primus, Sabeel Rahman, Aziz Rana, Judith Resnik, Cristina Rodriguez, Shalev Roisman, Ben Sachs, David Schleicher, Larry Schwartztol, Walter Shaub, Neil Siegel, Mila Sohoni, Matthew Stephenson, Cass Sunstein, Oren Tamir, Mark Tushnet, Adrian Vermeule, and workshop participants at Columbia, Duke, Harvard, the University of Minnesota, Northwestern, Suffolk, and the 2018 Legislation Roundtable. For excellent research and editorial assistance, I thank Grayson Clary, Max Gottschall, Maddy Joseph, Elias Kim, Cate McCaffrey, Steve Schaus, and the editors of the Harvard Law Review. For tireless help tracking down sources, I thank Harvard Law research librarian AJ Blechner.