I have posted to SSRN the introduction of my new draft article, titled Presidential Speech. Here is the abstract:
When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government. This oft-cited dictum from United States v. Curtiss-Wright Export Corp., originally voiced by Representative John Marshall in 1800, has traditionally not been taken literally. Historically, courts listened to the “sole organ” speak through the form of generalized policy statements issued by an executive branch agency, or even through briefs submitted by the Justice Department during the course of litigation. Seldom did we see such specific reflections from the Commander in Chief himself. No longer. In less than a year, it has become de rigueur for courts to cite President Trump’s tweets and other statements in judicial opinions. Indeed, when there is a conflict between the Justice Department’s litigation position, and the President’s social media, courts have deferred to the latter. This Article will assess the pragmatic and constitutional limits to the emerging jurisprudence based on presidential speech.