Academic highlight: Shaw on presidential speech and the courts

Should judges rely on a presidents public pronouncements to resolve cases?Cardozo Law School professor Kate Shaw has authored the first article systematically addressing the role that a presidents statements should play in court.The topic is timely:The U.S. Courts of Appeals for both the 4th and 9th Circuits faced that question when addressing challenges to the Trump administrations travel ban, and the Supreme Court will have to do so as well when it reviews those decisions this fall.

The issue is not new.As Shaw explains, courts have relied on presidents statements to decide a host of legal questions in recent years.For example, a California district court relied on a statement in one of President Barack Obamas speeches to conclude that the militarys Dont Ask, Dont Tell policy did not protect national security, despite contrary assertions in government briefs.Likewise, a Texas district court cited Obamas statements to support the conclusion that granting deferred action to millions of unauthorized immigrants violated the Administrative Procedure Act.Today, President Donald Trumps campaign statements, speeches and press appearances have played a central role in litigation challenging the legality of the travel ban, even as government attorneys argue that those statements should be given no weight.(Shaw made the interesting choice to focus her article on presidents spoken words, and thus she does not address whether courts should give any weight to Trumps tweets.)

Shaws article first discusses the context in which presidential speech is generated often rapidly, and for political purposes and then analyzes the judicial decisions that have relied on (or rejected) presidential pronouncements to resolve legal questions.She recognizes that the issue is complex, and her approach is nuanced.(Her thoughts on this subject may have been influenced by her previous role in the White House Counsels office.) Generally speaking, Shaw thinks courts should avoid giving legal effect to a presidents spoken remarks, because such statements serve as political storytelling, civic interpretation, persuasion and mobilization, not the articulation of considered legal positions. Instead of citing off-the-cuff presidential remarks, she argues, courts should rely on more carefully considered and crafted executive statements, such as legal briefs and administrative guidance documents.When there is conflict between the two as is often the case courts should look to the latter.Nonetheless, Shaw believes there are some exceptions to this general rule, such as when the presidents speech concerns foreign affairs, or when the speech is evidence of governmental purpose and that purpose is relevant to the resolution of the legal issue.

Shaw concludes by applying her framework to Trumps statements relating to the executive orders establishing the travel ban.She argues that courts may look at such statements to determine whether the ban was motivated by an impermissible animus against Muslims, but cautions courts against relying on the statements to determine the scope or operation of the ban.We shall see whether the Supreme Court agrees when it hears the case in October.