The Executive Branch Anticanon

43 Pages Posted: 27 Mar 2020

See all articles by Deborah N. Pearlstein

Deborah N. Pearlstein

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: March 24, 2020

Abstract

The current presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions, but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures surely provide multiple mechanisms by which presidential practice can influence future executive branch conduct. Judicial actors rely on practice as gloss on constitutional meaning; executive branch officials rely on past practice in guiding institutional norms of behavior; elected officials outside the executive branch and the People themselves draw on past practice to help evaluate the political legitimacy of presidential conduct in the present day. Yet while the prospect of precedential impact surely exists, it is equally apparent that not every executive action ends up having any of these effects. Quite the contrary, from the Roosevelt Administration’s action targeting Japanese-Americans on the basis of race, to President Nixon’s behavior in the Saturday Night Massacre, one might equally hypothesize the existence of an executive branch anticanon of sorts – executive actions that have produced none of the standard precedential effects, save inasmuch as they have served to establish an interpretive or normative understanding rejecting such executive behavior. Identifying how certain instances of presidential practice achieve such anticanonical status seems today an especially pressing exercise. In addition to helping refine our thinking about the interpretive impact of presidential practice on constitutional meaning, establishing how anticanonical status is achieved may help clarify the agreed-on scope of at least some of the norms of democratic governance that have proven rich fodder in recent years for “constitutional hardball” – resort to practices that are technically constitutional, but that one might once have thought run afoul of normative principles of governance that could “’go without saying.’” Surfacing the existence of anticanonical practice can likewise help guard against the prospect that disfavored presidential behaviors might reset default normative expectations among government officials and the public, expectations that tend to assume because past presidents have taken some action, future presidents can defensibly take the same approach. And tracing anticanonical development can help to identify pathways for forestalling emergent presidential precedent from developing. Examining anticanonical development through several concrete examples, this Article aims to demonstrate how presidential “precedent” is established less by presidential action, more by systemic reaction to what presidents do.

Keywords: presidential power, executive power, anticanon, constitutional law, executive branch norms, constitutional interpretation, constitutional hardball, historical gloss

Suggested Citation

Pearlstein, Deborah N., The Executive Branch Anticanon (March 24, 2020). Fordham Law Review, Vol. 89, 2020, Cardozo Legal Studies Research Paper No. 604, Available at SSRN: https://ssrn.com/abstract=3560589

Deborah N. Pearlstein (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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