Presidential Factfinding

80 Pages Posted: 6 Mar 2019 Last revised: 10 May 2019

Date Written: February 15, 2019

Abstract

The modern President possesses enormous power. She can use force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the “national interest,” perhaps that it will preserve “regional stability” or protect American lives. To impose sanctions, she might have to determine that a country has used chemical weapons against its own people. To remover an officer with for-cause protection, she must find that there was “cause,” such as “inefficiency, neglect of duty, or malfeasance.” Given that the President can only invoke these powers — and many, many others — when certain facts exist, the process and standard of certainty the President uses to find such facts can have enormous consequences. The phenomenon of presidential factfinding is thus both commonplace and important. It is also almost entirely unstudied.

This Article establishes the importance of presidential factfinding as a pervasive feature of presidential power spanning constitutional, statutory, and international law. The Article then examines the President’s existing obligations in conducting factfinding, arguing that the President has a constitutional duty to act, at the least, honestly and based on reasonable inquiry. Finally, it addresses how presidential factfinding ought to be structured and regulated internally within the executive branch, by Congress, and through judicial review.

Keywords: Presidential Power; Article II; Separation of Powers; Faithful Execution; Executive Branch; Constitutional Law; Administrative Law

Suggested Citation

Roisman, Shalev, Presidential Factfinding (February 15, 2019). 72 Vanderbilt Law Review 825 (2019). Available at SSRN: https://ssrn.com/abstract=3335156

Shalev Roisman (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
6174964336 (Phone)

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