Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power
By Michael Coenen. Full Text.
With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper presidential character,” and scholars of and participants within the U.S. constitutional system would do well to recognize and respect this commitment on its own terms.
Unfortunately, a constitutional commitment to Presidential virtue is not the same thing as a constitutional guarantee against unvirtuous Presidents; indeed, as Rozenshtein himself observes, one need look no further than the past election (and quite possible future re-election) of Donald Trump for confirmation of this fact. As a result, constitutional actors must sometimes confront the difficult task of dealing with Presidents who openly flout the virtues that those same Presidents are, constitutionally speaking, supposed to embrace.
In this Response, I identify and tentatively evaluate three possible approaches to incorporating considerations of Presidential virtue into the (judicially enforceable) law of executive power. I begin my analysis by considering the possibility of directly virtue-dependent decisions—decisions that openly and directly point to a President’s constitutionally salient character defects as a reason to apply doctrinal limits on Presidential power in an especially stringent manner. Not surprisingly, and largely echoing Rozenshtein’s sentiments on this score, I argue that courts should be extremely hesitant to render decisions in this way.
Second, I consider the possibility of indirectly virtue-dependent decisions—decisions that involve the application of rules that, though virtue-neutral on their face, might operate to mitigate harms that unvirtuous Presidents are uniquely likely to cause. I am somewhat more sanguine about the workability of these rules, though I also emphasize they are likely to carry only limited effectiveness as a virtue-promoting tool. Finally, and most bleakly, I consider (primarily as a descriptive matter) the possibility of perversely virtue-dependent decisions—decisions in which courts silently treat a President’s lack of virtue as a reason to afford that President more constitutional leeway rather than less. The underlying intuition here is that a President’s lack of virtue might sometimes make courts especially concerned about being on the receiving end of executive-branch retribution for decisions that go against the President; in particular, to the extent that a President’s lack of virtue makes the President especially willing to defy an adverse judicial decision, a court worried about such a constitutional showdown might have reason to treat the lack of virtue as reason not to render such a decision in the first place.