How do presidents affect the law when they speak? Should courts consider what they say, defer to what they say, and find governmental intentions in what they say? What if a president says one thing, perhaps improvising during a speech, and an official communication of an agency, the Justice Department, or the White House says another? Kate Shaw joins us to talk about her theory that generally (but not always) courts should ignore presidential statements that are not consciously intended to stake out a legal position. Obviously, there's an 800-pound, tweeting gorilla in the corner of the room.
This show’s links:
Kate Shaw's faculty profile (https://cardozo.yu.edu/directory/kate-shaw) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2042971)
Kate Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2981475)
Jeffrey Tulis, The Rhetorical Presidency (https://books.google.com/books/about/The_Rhetorical_Presidency.html?id=TcojDwAAQBAJ)
Peter Strauss, Overseer or "The Decider"? The President in Administrative Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=949649)
Elena Kagan, Presidential Administration (https://harvardlawreview.org/2010/05/presidential-administration/)
Oral argument in the Fourth Circuit in International Refugee Assistance Project v. Trump (https://www.c-span.org/video/?437105-1/fourth-circuit-hears-oral-argument-revised-travel-ban-audio) (Muslim ban 3.0)
Kathryn Watts, Controlling Presidential Control (https://repository.law.umich.edu/mlr/vol114/iss5/1/)
Jack Goldsmith, Will Donald Trump Destroy the Presidency? (https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-the-presidency/537921/)
Special Guest: Kate Shaw.