108 Iowa Law Review 1 (2022)
69 Pages Posted: 13 Sep 2022 Last revised: 7 Dec 2022
Date Written: September 9, 2022
Discussions of the President’s motive are commonplace in public discourse and public law scholarship. But the President’s motive is usually mentioned in passing, as an issue of moral or political, but not legal, significance. To the extent presidential motive has been analyzed as a legal issue, it has been largely confined to discussions of impeachment or, more recently, violations of individual rights. There has yet to be a full-length scholarly treatment of whether the President’s motive is relevant to the legality of her conduct as a matter of Article II—that is, whether the President’s motive is relevant to all presidential exercises of power. This Article takes on this task.
It argues that Article II requires the President to act motivated by the public interest, rather than her personal interest, in exercising power. It then normatively defends this requirement against arguments that motive ought to be irrelevant to the permissibility of conduct, concluding that inquiry into the President’s motive can be justified on both consequentialist and nonconsequentialist grounds, although it is more justified in some areas than others. The Article then explains how we can distinguish between personally-interested and public-interested motivations in the context of an elected representative, like the President, seeking to gain popularity, and identifies a mixed motive standard for when the President acts based on both permissible public-interested and impermissible personally-interested motives. Finally, the Article puts forward options for enforcement of the President’s motive requirement that could be implemented inside the executive branch, by Congress, or by courts, sensitive to where motive inquiry is most and least normatively justified.
Keywords: Presidential Power, Article II, Constitutional Law, Separation of Powers, Executive Branch, Judicial Review
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