Is the President a "They"?

by Michael C. Dorf

Notwithstanding the title of this column, I do not intend to diagnose Donald Trump with multiple personality disorder. Rather, I mean to invoke a well-known article by Kenneth Shepsle--Congress is a "They," Not an "It": Legislative Intent as Oxymoron. Relying on difficulties long ago identified by Condorcet, Arrow, and public choice theory more broadly, Shepsle made a point that had hardly eluded scholars and judges but which, he argued with some force, many of them seemed to forget from time to time: the intent of a legislature in enacting a law is not merely difficult to discern but usually incoherent.

Shepsle's article aimed at intentionalism in statutory interpretation, but he also criticized self-described textualists who limited their critique of intentionalism to an attack on sources. It's not enough to say (as Justice Scalia used to say) that committee reports and other forms of legislative history are unreliable evidence of the legislature's intent; Shepsle argued that there could not be reliable evidence of the legislature's intent, because there is (almost always) no such thing.

Judges and scholars who are persuaded by Shepsle's argument or skeptical of legislative intent for other reasons typically have fewer difficulties in identifying the intent of an individual actor, such as a mayor, governor, or president. That is true whether the question is what some action (an executive order, say) means or whether it is valid when judged relative to some constitutional test (such as equal protection) that may make subjective intent relevant in some particular context. Accordingly, judges and scholars who argue that the intent of the legislature should guide neither statutory interpretation nor constitutional evaluation may be more willing to rely on intent-based tests when the actions of a single officer are involved. After all, Congress is a they, but the president is a he (or some day, a she).

Necessarily? In the balance of this column I want to point to a tension between the so-called unitary executive theory and judges' reluctance to impugn the motives of the president. In doing so, I'll build on my latest Verdict column, which discusses the litigation over the Trump administration's efforts to add a citizenship question to the census.

The unitary executive theory begins with the observation that the Constitution's Article II vests "the executive power" in the president. Unitary executive proponents thus contend, among other things, that independent agencies--whose members and leadership are insulated from direct oversight and the removal authority of the president--may be unconstitutional. Maybe you find that persuasive; maybe you don't. Let's set your reaction aside. The key point for now is that those who champion or accept the unitary executive theory ought to regard the actions of the executive branch as emanating from a single mind.

But if so, how are we to reconcile the unitary executive with the courts' extreme reluctance to attribute executive branch policy to the current president's malign intentions? Consider the Travel Ban litigation. There was smoking-gun evidence that, but for then-candidate Trump's intention to prevent Muslims from entering the US, the government never would have adopted Travel Ban 1.0, nor either of its successors. And yet, in Trump v. Hawaii, a 5-4 majority of the Supreme Court--including some justices who have previously expressed sympathy for unitary-executive arguments--were unwilling to say that Trump's religious animus infected Travel Ban 3.0. According to the opinion for the Court of CJ Roberts, "because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification."

One way to understand that statement is as a rejection of any inquiry into the subjective motives of the president or anyone else. Citing the deference traditionally owed the president in matters of entry and national security, the Court applied mere rational basis scrutiny; under traditional rational basis scrutiny, actual motives are irrelevant; so long as a rational government agent could have adopted the challenged policy for a legitimate reason, the policy will be upheld.

That may well be what was going on in Trump v. Hawaii, but if so, the Chief Justice's opinion is at least somewhat confusing. He purports to be responding to the mountain of evidence of Trump's illicit intentions. If rational basis scrutiny makes all of that evidence irrelevant, the Court ought to have said that expressly and unambiguously. Yet there is at least a suggestion that the Court accepts for the sake of argument the notion that an illicitly motivated policy could be invalid on that ground.

More to the present point, notice the tension between the unitary executive theory and the Court's analysis. All of the evidence relating to the president himself--including statements while he was president--indicated that he regarded Travel Bans 1, 2, and 3, as watered-down versions of his promised Muslim Ban. By contrast, the evidence pointing in the other direction--consisting of the facially neutral text of Ban 3.0 and the investigations undertaken by various government agencies before adopting it--was based on the work of other people. To put the point starkly, the Court placed greater weight on the presumed intentions of the president's underlings than on the president's own clearly expressed intentions.

I am not saying that this procedure is impossible to reconcile with the unitary executive. Maybe given the extraordinary deference in this area, the case is unusual. Perhaps in some other setting, smoking-gun evidence of illicit presidential motive would suffice to overcome a presumption of regularity based on the work of agency underlings.

Or perhaps champions of the unitary executive theory might say that theirs is a reform project. One day, they hope, the president will exercise complete control over those who wield executive power, but until he does, judges must evaluate government policies based on the realities of present-day administration.

The latter response seems inadequate, however, given that the Travel Ban litigation arose in a context in which the relevant agency personnel serve at the pleasure of the president. That's also true of the census litigation, where we can assume that the alleged illicit intent of Commerce Secretary Wilbur Ross reflects the views of the president.

Wearing my legal realist hat, I doubt that the Court's conservatives will recognize, much less satisfactorily resolve, the tension between the unitary executive and their reluctance to invalidate the facially neutral output of the administrative state based on the illicit motives of the president or Cabinet members--at least not during a Republican presidency. But the tension nonetheless exists.