//  9/27/17  //  In-Depth Analysis

It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.

The latest Trump-tweet controversy—beginning with the President’s criticism of ESPN journalist Jemele Hill, building up to the explosive controversy over the past weekend in the clash between the White House, Colin Kaepernick, and the National Football League at large—has revived ongoing concerns about Donald Trump’s pattern of bullying, attacking, and attempting to delegitimize dissenting voices. The immediate response from the public and civil society in recent days has been powerful and encouraging. Hill has been kept on the air after vigorous support from her coworkers and the public. More teams joined in protests signifying varying degrees of solidarity—some with Kaepernick’s original protests of racial injustice, others with a more generalized opposition to the President’s attacks. The public response is free speech and public debate at its best: a mobilization of civil society and public opposition signaling a rival set of norms, values, and aspirations for our polity.

This President’s practice of zeroing in on specific individuals and businesses to bully them, intimidate them, and to generally chill dissent is deeply troubling from the standpoint of protecting our democratic norms, practices, and institutions. Others in this symposium have addressed the First Amendment implications of these events more directly (see here and here). In this post, I would like to explore a different set of concerns, raising two possible ways in which we might understand the problem with this way of deploying the public rhetorical power of the Presidency: first, with respect to norms of democratic discourse, and second, with respect to potential tainting of future Executive actions. If nothing else, this type of Executive bullying threatens foundational political and moral values upon which the legitimacy of the Executive itself depend.

First, the very fact that these statements emanate from the President himself, with the trappings of his office, raises concerns about democratic norms. Some of Trump’s statements in this controversy were delivered at a rally where he stood at a lectern bearing the Presidential seal. Other statements came via Trump’s own Twitter account. As Amanda Shanor has noted on this blog, there are good arguments to be made that Trump’s Twitter handle represents an official channel of communication with the general public. These arguments are being advanced to argue that Trump’s Twitter channel is a kind of public forum, and thus individuals cannot be blocked by the President from the channel. But it the Twitter feed is a channel of communication to the general public, it also follows that the President’s statements on this channel be viewed as the formal pronouncements of the Office of the President. Tweets attacking Hill, Kaepernick, or others, then, are not just the private ruminations of Donald Trump the man; they are the statements of the President.

So far, this does not yet indicate anything about any legal or Constitutional constraints on Trump in this regard. At a minimum, the deploying of the public channels of Presidential communication to bully, intimidate, and attempt to silence dissenting voices represents an important violation of democratic norms. The official leader of a democratically-elected government has singled out individual actors and firms for criticism—not, it should be noted, by voicing substantive disagreement, but rather by directly attacking the very legitimacy of the dissenter’s right to dissent. This kind of politicizing of ordinary private life—and the delegitimizing of dissent—represents one of those critical norms that, when crossed too often, removes a key bulwark of democratic society. The result is a potentially dangerous chilling of dissenting speech and association at worst. At best, the result is a further polarization of the public sphere, which continues the rapid erosion of a sense of common political membership, dialogue, or even terms of discussion—all of which are essential for democracies to function.

But what happens if and when these types of statements are followed by actual Executive actions? Here we can imagine a second set of problems, not just to the norms of democratic discourse, but to a potential tainting of the legitimacy of Executive branch institutions and actors more broadly. As Tindall and Berwick note in their opening prompt, a key concern is what to do if and when these statements “go beyond criticism and become threats or intimidation that chills speech,” citing potential scenarios such as the threatened holdup of merger reviews, administrative licensing processes, and invasive IRS audits of individuals and businesses that might be singled out by the Executive Branch. Indeed, the concerns about Presidential speech and the call for a more restrained demeanor are not just about civic virtue or decorum; they speak to a deeper tradition of vigilance against the specter of arbitrary governmental action. To the extent that there are more difficult challenges to the legitimacy of our democratic institutions—and potentially, to the legality of different governmental actions—they arise from the interaction between speech that articulates troublingly arbitrary and anti-democratic sentiments on the one hand, and the actual exercise of governmental power on the other. To put it another way, while the President’s statements at the moment challenge democratic norms—and that alone makes them worthy of criticism—they can also create future jeopardy for the Executive, either politically or legally, by potentially tainting future Executive actions.

Our Constitutional government rests on several deep underlying structural principles—such as the separation of powers, federalism, representative democracy, and checks and balances. These core structures operationalize the foundational republican principle of protection against arbitrary governmental power; republican government is government that is checked against the dangers of domination or corruption—and that therefore operates in the public interest. But the foundational Constitutional structures of separation of powers, federalism, and the like—not to mention, legal doctrines and judicial review preserving these structures—might well lack the granularity to zero in on more micro-level actions within the vast, modern Executive Branch. This is where modern institutions and practices of the administrative state come in. As Jon Michaels rightly argues, the “administrative separation of powers” recreates a modified form of checks and balances within the Executive Branch itself, through statutory measures like the Administrative Procedure Act (APA), the creation of an independent civil service, and the like. This pattern of constructing institutional processes that effectuate checks and balances and prevent arbitrary exercise of governmental authority also animates other more semi-formal intra-Executive practices that have developed in recent decades: whether it is in context of procedural self-restraint in national security (see here, or here) or the rationalizing of agency administration through cost-benefit analysis, the important norms and practices limiting improper contacts with ongoing investigations and ongoing adjudication matters (see here or here), or even the more informal but still highly structured clearance procedures that traditionally shape White House communications and policy offices.

Now some of these mechanisms can easily be criticized as cumbersome and overwrought. And in some ways they might well be, as with the often easily-caricatured contortions that elected officials go through in ordinary political times to avoid giving offense or stating too frankly what they hope to achieve. No doubt some of Trump’s own appeal as a candidate and a President lies in part in his image as someone who sweeps away the encrusted trappings of political theatrics that inhibit genuine action and plain speech. But in raising the opposite specter of an unrestrained individual will, untampered by cold judgment, robust staff restraints, or intra-Executive procedures, Trump reminds us precisely why those intra-Executive processes, formal, semi-formal, and informal, are all so central: they help assure us that the modern Executive, with all its vast powers, remains consistent with the core structural principle of nonarbitrariness.

This then brings us back to the bullying statements of the kind Trump articulated this past week. In addition to their direct challenge to democratic norms, they also create a further problem: a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions. This is even more the case in context of an administration that has often bypassed many of those formal and informal processes that are meant to structure the exercise of Executive judgment and authority, thereby blunting the risk of arbitrariness. Thus, if and when the Trump administration engages in a formal Executive branch action of the kind Tindall and Berwick raise, these actions will (and should) be read in context of (a) these statements of the President, and (b) a higher degree of attention to the kinds of Executive branch processes employed in shaping those actions.

I am convinced that these considerations should play a role in shaping political and civil society responses to such future scenarios. Where there are prior statements attacking dissenters, and where there are Executive actions that seem to give action to those statements, political actors in Congress, the White House, and civil society must be particularly alert. Agencies will have to be particularly careful when acting on matters relating to the targets of the President’s statements, to shore up the legitimacy of their actions. When considering legal violations in such potential scenarios, I think a lot depends on the particulars of the facts. But one potentially important set of legal tools might be ordinary principles and doctrines of administrative law. Executive actions of this sort might be challenged for procedural irregularities under the APA or under “arbitrary and capricious review”—but these claims would effectively be in service of both policing Executive power, and doing so in context of the dangers of Executive power attacking dissenting speech and association.

A relatively “easy” case might be where there is an actual procedural or substantive violation, on top of these suggestive statements on the part of the President: for example, Executive agencies depart from ordinary procedure to go out of their way to harass individuals or firms the President has already singled out as hostile dissenters. Here, the President’s statements would provide additional weight and urgency to the legal violations that might arise in such a case. Such irregularities, already covered under ordinary administrative law requirements and procedures, would look even worse in light of the President’s prior bullying statements. It’s one thing if, say, an agency transgresses on its licensing processes; it is quite another if that transgression manifests in light of a prior stated effort by the President to shut down a dissenting voice.

A harder case might be if, in these hypothetical future Executive actions, formal procedures are followed correctly, but the agencies act in ways that appear to lean heavily against the interests of individuals and firms the President has already singled out in his speech. Here we might say that, precisely because the administrative checks and balances have been met, there is no matter of legal concern. But I think that, depending on the facts that might arise, future procedurally-valid Executive actions might be seen as illegitimate or legally suspect, in light of the President’s prior statements.

Suppose that, after these statements, Jemele Hill finds herself facing a sudden IRS audit, or that ESPN faces regulatory scrutiny of some sort. Given Trump’s statements having raised the specter of attempted intimidation of dissent and the dangers of arbitrary governmental power, we might seek greater scrutiny of the agency’s reasonings and justifications in these instances. Agency actions, including adjudications, licensings, and other such orders are within the scope of the “arbitrary and capricious” review doctrine, which has in part been taken as an expertise-forcing measure to prevent political taint of expert agency judgments. Under long-standing principles of administrative law, agencies cannot change their justifications for actions after the fact, and their reasonings for a change from prior adjudications must be sufficient. I share the view among many administrative law scholars that in general judicial review of agency decision-making should also be permissive of agencies making policy judgments that are politically-valenced—not everything should or even can be judged “purely” on basis of expertise. But I could also imagine a scenario, like the ones sketched by Tindall and Berwick, where there could be a strong argument that precisely because of the President’s comments, the implications for foundational principles of free speech and free association, raise questions about the arbitrariness of an executive action.

Judging such a scenario would have to be extremely context- and fact-dependent, so it is hard to make a general statement here. But for now, it is enough to suggest that the ordinary institutional norms and principles of administration—procedural systems, norms of reason-giving, and the like—might face a higher political burden of proof to assure their legitimacy if they involve some of the targets of the President’s spoken attacks.

Beyond administrative law hooks, a similar argument might be raised in Constitutional terms, depending on the circumstances. First Amendment concerns about freedoms of speech and association might well be compromised by the kinds of arbitrary government practices more conventionally associated with Fourteenth and Fifth Amendment Due Process considerations—or even reviving Equal Protection “class of one” theories.

The bottom line is this: we should consider the the interaction between concerns about governmental arbitrariness and violations of ordinary process on the one hand, and the chilling effect on speech on the other hand. Fact patters that include explicit statements by governmental actors expressing intent to bully or intimidate dissenting individuals or entities color our interpretation of subsequent government actions. In these potential scenarios, these joint arbitrariness/speech concerns open up legal theories that can be channeled through administrative or Constitutional law registers.

Now if this concept of Presidential speech “tainting” future governmental action sounds familiar, it should: it is analogous to the kinds of arguments raised around the travel ban litigation. Just as some travel ban litigants and amici have relied on an interaction between First Amendment concerns of freedom of religion and Fourteenth Amendment doctrines of animus, here we would see a deploying of administrative law principles to check arbitrary Executive power, read in context of a larger defense of First Amendment values—even if the First Amendment itself plays a less direct legal role.

Critics in the travel ban cases have based their arguments in part on a warning that this kind of interference with otherwise procedurally-sound Executive action could create a far-too subjective tool for judicial overreach, effectively judicializing (or even Constitutionalizing) what ought to be ordinary matters of political disagreement. This is not an unreasonable concern—and in a lot of ways we might expect the bar for Executive action in the scenarios described above to be even lower than that in the travel ban instance: there is no suspect class in question (unless there were a showing of systematic racial bias on the part of Executive agencies, not just on the part of the President’s Twitter-wrath), and there seems a likelihood that reasonably well-run agencies would be able to offer many sufficient grounds for their actions meeting traditional norms of expertise-based policy judgment.

But while the danger of over-judicializing mere political disagreement is a fair concern, the core principle of non-arbitrary government and the renewed anxieties around the deploying of Executive power and prestige to chill dissent are precisely why we should consider arguments like in the travel ban and like the one suggested here: a deploying of traditional legal tools (such as ordinary administrative law tools) as a way to raise concerns about arbitrary government action that might be working to deliberately chill dissent. Authoritarian rule is both dispositional, and institutional. Sometimes it arises in context of procedural and institutional irregularity. But sometimes it arises within the scope of ordinary discretion, but with dangerously tailored, imbalanced application—such as the intent to suppress dissent—providing motives that rightly taint the legitimacy of actions that would otherwise lie within the scope of Executive discretion.

A final word here: if the core danger of these types of statements is to the underlying legitimacy of, and faith in, Executive branch actors and institutions, then ultimately the long-term solution is going to have to be institutional rather than doctrinal. The continued existence of modern executive authority—and its reconciliation with values of republican checks and balances and democratic accountability—depends on faith in nonarbitrary government. If we don’t trust governmental actors to act non-arbitrarily, then we would have reason to prophylactically limit executive power more broadly (a view that, after years of bipartisan expansion of the imperial presidency and security-surveillance apparatus, may have some sudden cross-partisan support). But ultimately our best check against arbitrary government remains in the structure of government itself. If our intra-Executive checks and balances prove weak in the face of the temperament of a President like Trump, then future Trump-proofing of our government would seem to require a further codification and re-entrenchment or revision of those intra-Executive checks and balances.

DISCLAIMER: The author also serves on the Board for Protect Democracy.



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