The Executive Branch Anticanon

By Deborah Pearlstein

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past practice to help evaluate the political legitimacy of presidential conduct in the present day. Yet while the prospect of precedential impact exists, it is equally apparent that not every executive action ends up having any of these effects. Quite to the contrary, from the Franklin D. Roosevelt administration’s action targeting Japanese- Americans on the basis of race during World War II, to President Richard Nixon’s behavior in the Saturday Night Massacre, one might equally hypothesize the existence of an executive branch anticanon of sorts— executive actions that have produced none of the standard precedential effects, save inasmuch as they have served to establish an interpretive or normative understanding rejecting such executive behavior. Identifying how certain instances of presidential practice achieve such anticanonical status seems today an especially pressing exercise. In addition to helping refine our thinking about the interpretive impact of presidential practice on constitutional meaning, establishing how anticanonical status is achieved may help clarify the agreed-upon scope of at least some of the norms of democratic governance that have proven rich fodder in recent years for “constitutional hardball”—that is, resort to practices that are technically constitutional but that one might once have thought run afoul of normative principles of governance that could go without saying. Surfacing the existence of anticanonical practice can likewise help guard against the prospect that disfavored presidential behaviors might reset default normative expectations among government officials and the public, expectations that tend to assume because past presidents have taken some action, future presidents can defensibly take the same approach. And tracing anticanonical development can help to identify pathways for forestalling emergent presidential precedent from developing. By examining anticanonical development through several concrete examples, this Article aims to demonstrate how presidential “precedent” is established less by presidential action and more by systemic reaction to what presidents do.