Bully Pulpit

Question 1

Pros of Using the Bully Pulpit

Answer 1

• Brings attention to what executive is doing
• Spur action in Congress
• Frame the narrative
• Try to get ahead of the news cycle
• Clarify what the actual action means through the bully pulpit
• Make sure the public + beneficiary community is aware the action is
  -> can lead to better compliance + support
• important purpose w/in admin - policy staff always want campaign promises b/c more likely to get the action done if you say you will
• State of the Union = Super Bowl of bully pulpit use

Question 2

Cons of Bully Pulpit

Answer 2

• Can sometimes put a target on a policy’s back + make it more likely to be challenged by a President’s political opponents
• There’s very little Pres can do about which law doesn’t have at least something to say – there are ways bully pulpit can impugn viability or credibility of a policy (this was the point that Prof was making re you would maybe anticipate not a lot of ways to challenge bully pulpit, but it does become an issue to some extent)

Question 3

Texas v. US - Bully Pulpit

Answer 3

• 5th Cir used Obama statements here against him in a sense
• essentially, they argued Obama’s own statements that DAPA changed the law meant it wasn’t just a non-enforcement policy statement but a substantive rule
• “announcing DAPA to the nation for the first time, President Obama stated, ‘I just took an action to change the law.’ He then made a ‘deal’ with potential candidates of DAPA: ‘if you have children who are American citizens . . . if you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community—you’re not going to be deported. . . . If you meet the criteria, you can come out of the shadows. . . .’ . . .t ‘it was the failure of Congress to enact such a program that prompted him . . . to “change the law.” ’

Question 4

Washington v. Trump - Complaint

Answer 4

• “Prior to his election, Donald Trump campaigned on the promise that he would ban Muslims from entering the United States.”
• After making numerous anti Muslim comments, “On January 27, 2017, one week after being sworn in, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” (Muslim Ban EO)
• lot from the campaign trail (not necessarily in the context of talking about a particular executive order or policy)

Question 5

Washington v. Trump - 9th Cir

Answer 5

• dealt w/ a request to stay district court’s temporary restraining order on the ban -> winds up upholding TRO on due process grounds
• technically didn’t decide the issue, but language suggests can consider extratextual evidence for purpose of EO (i.e. Trump’s statements could be considered)

Question 6

Danger of Relying on Campaign Statements

Answer 6

• Chilling campaign speech, limiting ability of candidates to present selves to voters
• could be that President won’t say anything on campaign trail, or might wind up being afraid of changing minds once public record made as a candidate
• footnote re FDR - LOTS of conflicting statements on campaign trail (though very different time period + context)

Question 7

Washington v Trump - Kozinski Denial to Rehear En Bance

Answer 7

Evaluating Presidential speech in litigation is unwise because:
1) speech concerns
2) judicially unmanageable (no way to weigh significance of ev)
3) lack of guiding principles
4) slippery slope arguments (chill campaign speech, too much litigation)

• also argues not reliable indicators of intent
• would prefer to limit evidentiary universe to activities undertaken in crafting an official policy

Question 8

Katherine Shaw - Article Re Presidential Speech

Answer 8

• offers criteria for deciding what speech to evaluate as evidence of intent
• overall concept - don’t give weight to Pres statements when acting in political arena rather than legal arena

Should not use when:
- outside the legal arena
- political storytelling
- persuasion + mobilization

Question 9

Shaw Article - Specifics

Answer 9

General Principle: Binding Presidents to their claims and representations has an undeniable appeal. But for the most part it is a category error for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization, not the articulation of considered legal positions.

Exceptions: The general principle of non-reliance, however, should give way under several circumstances: [1] first, where the President clearly manifests an intent to enter the legal arena; [2] second, where presidential speech touches on matters of foreign affairs; and [3] third, where presidential speech supplies relevant evidence of government purpose, and government purpose is a component of an established legal test.

Question 10

Issues to Consider re Bully Pulpit

Answer 10

• MQD?
• directive language in speech?
• info re purpose of actions?
• Pre-determination issue and lack of real deliberation? (relevant to reasoned decision-making)