Article Title
Speech, Intent, and the President
Keywords
Presidential intent, Presidential speech, Donald J. Trump
Abstract
Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law-from equal protection and due process to the First Amendment's Free Exercise and Establishment Clauses, from the Eighth Amendment to the Dormant Commerce Clause, and in statutory interpretation and administrative law cases across a range of domains-assessments of the intent of government actors are ubiquitous in our law.
But whose intent matters to courts evaluating the meaning or lawfulness of government action? When it comes to statutes, forests have been felled debating the place of legislative intent. But, although the government conduct subject to challenge is frequently action by executive-branch officials, no coherent body of work attends in the same way to the role of intent and the executive-either its function across bodies of law, or the means by which it is established
The novel rhetorical habits and strategies of President Donald Trump have already thrust questions of presidential intent into the spotlight in high-stakes recent and ongoing litigation. Both the Supreme Court and lower courts have struggled in these cases, with no real guiding principles regarding the significance of presidential statements, their relationship to presidential intent, or the relevance of intent in challenges to presidential action. These cases highlight the absence of any coherent conceptual framework for assessing the speech and intent of the President. This Article attempts to fill that gap.
Recommended Citation
Katherine Shaw, Speech, Intent, and the President, 104 Cornell L. Rev. 1337
(2019)
Available at: https://scholarship.law.cornell.edu/clr/vol104/iss5/4