Donald Trump’s “Sole Organ”

February 26th, 2017

Before he joined the Supreme Court, Rep. John Marshall of Virginia referred to the President as the “the sole organ of the nation in its external relations.” Nearly 130 years later, the Supreme Court adopted this conception of the Chief Executive in United States v. Curtiss-Wright, who serves as the “the sole organ of the federal government in the field of international relations.” While this notion has historically been applied to the realm of foreign affairs, in my writings on the constitutionality of DAPA, I adopted it for domestic matters. Specifically, I cited President Obama’s statements that he could not grant deferred action beyond DACA beneficiaries–a position he promptly reversed–as evidence of bad faith. I was widely criticized for this position, as my interlocutors insisted that courts should not consider off-the-cuff statements from the President.

The closest authority I could find to support this position was an exchange in Hamdan v. Rumsfield between Justices Thomas and Stevens. In dissent, Justice Thomas quoted from a DOD press conference, which explained the purpose of President Bush’s Military Commission Order No. 1. Justice Stevens rejected any reliance on these “press statements,” noting that “We have not heretofore, in evaluating the legality of Executive action, deferred to comments made by such officials to the media.” That is, the policy would be judged on its four corners, and not external remarks. But this did not directly concern the President’s press statements.

In Gridlock, I provide this summary of the doctrine, with references to Presidential pronouncements in Youngstown:

It is true that the President’s statements in informal fora are far different than official executive branch regulations published in the Federal Register or sworn testimony submitted to Congress. But these remarks resonate on a much deeper level. When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deeply.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Perhaps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

As with many of my ideas that that were ridiculed before January 20–such as my work on the need for uniformity with respect to nationwide injunctions concerning immigration–the “sole organ” theory has now gained a certain cache.

In brief after brief after brief in Washington v. Trump, the challengers cited then-candidate Trump’s statements about his desired “muslim ban,” as well as President Trump’s concerns for protecting Christians in majority-Muslim nations, as evidence of unlawful animus. The 9th Circuit judges specifically referenced those statements in its Establishment Clause analysis (though stopped short on relying on them). To prove the point about the “sole organ,” the panel also rejected an attempt by White House Counsel Don McGahn to clarify the executive order, such that green-card holders were not covered. That change had to come straight from the horse’s mouth, so to speak. Even after the 9th Circuit stayed en banc proceedings, on the government’s representation that a new executive order was forthcoming, the Washington AG continues to cite the President’s statements, which conflict with that of the Justice Department.

Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House. On February 16, Defendants filed a supplemental brief on en banc consideration, representing that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. In response, the Court immediately issued an order staying further en banc proceedings. 9th ECF 161.

Yet on the same day—February 16—President Trump directly contradicted the representations made to this Court. During a news conference, the President informed the nation that he is pursuing his appeal in the Ninth Circuit.3 He explained that: “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” Id. at note 3.

In the earliest moments of the Trump Administration, we saw another manifestation of the President’s “sole organ”: the Twitter accounts of executive-branch agencies. The Washington Post reported, “Trump administration officials instructed employees at multiple agencies in recent days to cease communicating with the public through news releases, official social media accounts and correspondence, raising concerns that federal employees will be able to convey only information that supports the new president’s agenda.” The U.S. Department of Agriculture was apparently put under some sort of “gag order,” preventing it from releasing “any public-facing documents.” Similar orders were in effect at the EPA, Interior, and HHS. The National Park Service even apologized for retweeting photographs comparing the inaugurations sizes of President Obama and President Trump.  With respect to Obamacare, the Trump Administration canceled pre-paid advertisements promoting the open-enrollment season. As Eugene Volokh correctly pointed out, there are no free speech issues: “the First Amendment doesn’t give subordinates the right to choose what official government speech contains, over the objections of their superiors.” It is the President, indeed the “sole organ” of social media, that gets to decide what his subordinate agencies tweet.

One final area where the President’s personal statements may come up: in the court martial of Sgt. Bowe Bergdhal. Then-candidate Trump referred to Bergdahl as a “dirty rotten traitor,” and mimicked his execution by firing squad. Bergdahl’s lawyer, Eugene R. Fidell, argued that these statements would prevent a fair trial. The trial court judge denied the motion-to-dismiss, finding that“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.” This case will be appealed to the Court of Appeals for the Armed Forces, and perhaps ultimately, the Supreme Court. Yet another place where the President’s statements will become par for the judicial diet.

Relatedly, on January 13, a detainee at Guantanamo Bay cited in an emergency motion Trump’s tweet that “these are extremely dangerous people who should not be allowed back onto the battlefield.” His lawyers explained that “the President-Elect has stated publicly his intent not to release any detainees from Guantanamo regardless of the facts or circumstances of their cases.” (Ultimately, Secretary Carter denied the motion to transfer, so the issue was moot).

I will write more about President Trump’s “sole organ.”