Article

Equal Speech Protection

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Introduction

The First Amendment’s hierarchy of protection for different types of speech is a myth. The doctrine has long purported to place political speech at the highest and most protected position in this hierarchy, followed by commercial speech and speech on purely private matters, with “low-value” speech like obscenity and fighting words on its bottom rung.1 1.I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)).Show More This basic hierarchy, however, is a doctrinal fiction. As a theory, it does not accurately describe how the First Amendment protects speech; as a doctrine, it does not guide the Supreme Court’s application of free speech law. The true but hidden framework of modern free speech law is one of equal speech protection. Through a holistic reevaluation of the Supreme Court’s free speech jurisprudence, this Article reveals that the First Amendment grants different types of speech comparable levels of protection and that this level of protection is altogether quite moderate—including for political speech. The most salient and startling consequence of exposing the hierarchy as a myth, therefore, is to uncover the constitutionality of restricting dangerous political speech to safeguard important public interests—namely, the protection of democratic governance.

The widely accepted view that political speech garners an exceptionally high level of constitutional protection is flawed in two ways. First, political speech does not enjoy an especially robust level of protection from state interference. The vast majority of political speech is routinely subject to significant government regulation or enjoys no First Amendment protection at all—this includes political speech on public and most private property, election speech, expressive political conduct, political speech crimes, and the speech of millions of government employees, students, and prisoners on matters of public importance. Second, the First Amendment does not protect political speech to a greater degree than it does non-political speech like cultural, commercial, or “low-value” speech. Rather, all speech receives essentially equal protection, notwithstanding judicial platitudes to the contrary.

This equal level of protection that all speech receives is best described as “moderate.” It permits, in effect, courts to moderate speech rights to preserve democratic interests. From a doctrinal standpoint, moderate protection looks a lot like intermediate scrutiny applied to all speech. But “intermediate” does not quite capture what the Supreme Court is doing when it extends moderate protection to speech. The Court is not simply charting a middle road between strict scrutiny and rational basis review, nor is it conducting a pure balancing inquiry or employing proportionality review to speech regulations. Instead, it is applying a unique, substantive standard that permits reasonable limits on speech that are necessary for democracy to function. Under this substantive standard, the Court largely defers to the government on whether a regulation is reasonable and focuses, implicitly, on whether it is necessary to protect democratic governance. This inquiry takes two forms: it can focus on safeguarding effective governance or it can focus on protecting democratic participation. The first requires subordinating speech rights to public order and safety; the latter requires doing so to ensure a healthy and informed public discourse. The result is a doctrine that equally permits regulations on any type of speech for these purposes, in direct contradiction to the hierarchical model of speech protection nominally embraced by the Court throughout its First Amendment caselaw.

The hierarchy of speech protection is no more than a doctrinal myth. The concept of myth is integral to understanding the hierarchy model. Myths are widely held beliefs that are, at once, invented traditions and fictitious narratives.2 2.See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine).Show More The hierarchy of speech protection embodies both elements of myth: it was invented out of whole cloth late in the development of free speech jurisprudence and has since persisted as a false narrative about how the First Amendment protects speech. Like most myths, the hierarchy is real and not real; it is pretend in that it does not control the outcome of cases, but it is powerful in that it continues to propagate widely held, but mistaken, assumptions about free speech law.3 3.See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”).Show More

This acoustic separation between myth and law has reached a critical juncture. The digital age has transformed large swaths of human behavior into speech, bringing more and more activity within the First Amendment’s protective sphere and shading distinctions between types of speech. At the same time, the quantity of social and political speech that poses serious risks to democracy, the economy, and a just society has exploded. These developments demand regulations on speech, and yet the hierarchy of speech protection claims to immunize just such speech from regulation. Exposing the hierarchy as a doctrinal myth that does not reflect the law or theory of free speech protection thus illuminates the constitutional paths forward for regulating speech that risks serious social, political, and commercial harms.

Unmasking this myth has particular ramifications for the regulation of political speech. For decades the Supreme Court has perpetuated the narrative that there is a gradation of speech protection and that political speech receives the utmost protection from state interference. But its rhetoric does not match its holdings. A close examination of the protection afforded to political speech, both in the absolute and relative to other types of speech, shows that this supposed cornerstone of First Amendment law is more smoke and mirror than substantive rule. Indeed, the ruse that political speech receives near-absolute protection is perhaps the greatest misdirection accomplished by the hierarchy myth. In reality, political speech receives a moderate level of judicial protection, equal to that received by all other types of speech.

This tradition of extending equal and moderate protection to all speech works well by allowing the Court to moderate free speech rights in the interest of protecting democratic governance. But its potential is under-realized and increasingly at risk because it remains hidden behind the myth of the hierarchy of speech protection. By dismantling the myth, scholars, legislators, and judges alike can begin to reconceptualize the limits, and the possibilities, of speech regulations—including and especially political speech regulations. The advantages of doing so are manifold: it would put on the table some presumed off-the-wall restrictions on false and malicious political speech,4 4.424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A.Show More and it would serve to democratize speech protection by encouraging legislatures to claim a greater share of the governing responsibility for protecting free speech.

This Article lays bare the hierarchy myth through a comprehensive retelling of the Supreme Court’s free speech jurisprudence. It explains why the hierarchy was invented, why it did not take hold doctrinally, and why it has nonetheless persisted rhetorically. In brief, the Court invented the hierarchy in two steps over a pair of cases in 1976: Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.5 5.The reasons undergirding the hierarchy’s invention are discussed infra Section I.A.Show More First, in Buckley, the Court shifted the role of political speech as core to the First Amendment to a new position as the highest value of the Amendment. Then, in Virginia Pharmacy, the Court established a counterposing point on this newly conceived spectrum of speech by extending a supposedly lower level of protection to commercial speech. What appeared in these cases as small rhetorical steps actually represented a massive doctrinal leap.

The reason for this move inheres in the subject matter of the two cases in which it appears. Buckley and Virginia Pharmacy extended First Amendment protection to campaign financing and to commercial speech, respectively, and represented a tipping point in the post-New Deal explosion of First Amendment coverage. Prior to these cases, the Court did not purport to extend different levels of protection to different types of protected speech. But the Court had spent the last forty years increasingly expanding equal First Amendment protection to speech beyond core political speech—both by deepening coverage to semi-political speech and widening coverage to other types of speech—so that by 1976 the doctrine was sinking under its own weight and deeply in need of an organizing framework. It was in this novel context that the Court wholesale invented a hierarchy of speech protection, ordered according to the speech’s First Amendment value, out of what had been a diverse pool of equally protected speech representing various First Amendment values.6 6.See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech).Show More

Lacking historical basis and in tension with other foundational principles of free speech law, the hierarchy failed to take root and guide the doctrine. Since its invention, the Supreme Court has continued to extend a quite equal level of protection to all covered speech. This equalization of speech protection results from two overriding trends: first, the Court has continued to grant political speech mostly moderate, not absolute, protection, permitting ample government regulation to facilitate the safe exchange of political ideas. In recent decades, the Court has reliably reaffirmed, or in some cases even lessened, this moderate level of protection for political speech, contrary to prevailing criticisms.7 7.A full explanation of these two trends follows infra Sections I.B and I.C.Show More Second, the Court has consistently elevated protection for non-political speech to the same level as protection for political speech immediately or soon after recognizing that speech as covered by the First Amendment.8 8.As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning.Show More

These two trends—maintaining moderate protection for political speech and extending the same level of protection to non-political speech—are themselves the inevitable consequence of applying the patchwork of core doctrines that comprise First Amendment law. These doctrines consist of a series of safety valves that funnel most political speech restrictions to regulation-accommodating corners of the jurisprudential landscape, as well as a series of neutral principles that resist drawing distinctions between types of speech.9 9.See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015).Show More Together, these doctrines exert simultaneous pressure to ratchet down protection for political speech and ratchet up protection for non-political speech to the same level, all but ensuring that a hierarchy of speech protection could never fully develop.

Scholars have previously pinpointed the 1970s as the moment in which free speech doctrine became distorted in a number of significant ways. For example, scholars have identified how the free speech cases of that decade transformed the doctrine into one that vindicates corporate speech rights, undermines economic regulations, and subordinates the interests of citizens.10 10.See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015).Show More This Article identifies another doctrinal innovation that occurred in this period: the Court’s invention of a hierarchy of speech protection and the ultimate failure of this new framework to guide free speech law. This Article thus exposes the fallacy in the doctrinal truism that political speech garners especially high protection, both in the absolute and relative to other types of speech.

In so doing, this Article resituates the current scholarship on the Court’s recent appetite for overturning commercial regulations under the First Amendment—a trend commonly termed the “Lochnerization” of the First Amendment. The origins and consequences of this trend have been widely discussed in recent years, almost entirely through a critical lens.11 11.See infra Subsection I.C.1.Show More This Article offers a novel understanding of how Lochnerization actually fits quite neatly, and in some ways beneficially, within the far larger trend of maintaining equal speech protection amongst varying types of speech. Where the Lochnerization sub-genre of First Amendment critique has focused narrowly on the doctrinal developments (or distortions) of commercial speech law, this Article makes clear that First Amendment Lochnerization is actually one piece of a larger doctrinal framework that blurs distinctions between types of speech and renders restrictions on all speech subject to moderate judicial protection. Specifically, Lochnerization is one speech protection equalization tool among many that functions as a means of ratcheting up protection for commercial speech to the same level of protection enjoyed by all other types of speech.12 12.See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).Show More

Finally, unlike the overwhelming majority of recent literature on the trajectory of First Amendment doctrine,13 13.See infra Section II.B.Show More the doctrinal manipulation this Article identifies has the potential to be normatively valuable. Recognizing that the hierarchy of speech protection and its attendant truism that political speech garners near-absolute protection are doctrinal myths clarifies the constitutionality of speech regulations aimed at protecting a safe and healthy political discourse. It also excavates the robust, but hidden, tradition of moderate and equal speech protection, which this Article argues serves as a unifying “social democratic theory” of free speech law.14 14.See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment).Show More

But it is important from the beginning to sharpen this Article’s assertion that the hierarchy of speech protection is a myth. The myth I describe is a doctrinal myth—it is a legal principle that operates rhetorically rather than analytically, meaning it has little descriptive value for explaining the landscape of speech protection and little influence on how the Supreme Court decides free speech cases. This is not to say that the myth does not do any work. Most myths persist precisely because they have social, political, and psychological power. The myth of the hierarchy of speech protection is no different. It has bolstered the Court’s power and reputation as a guardian of speech rights and fostered a deeply ingrained legal and popular culture of speech tolerance that shapes law and policy decisions in legislatures and boardrooms every day.15 15.First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text.Show More The myth serves the Court and free speech advocates and is also embraced by progressive scholars attempting in good faith to stem the constitutional inoculation of commercial activity from regulation. As this Article shows, however, the hierarchy myth is self-defeating and precisely the wrong doctrinal framework to accomplish progressive constitutional ends.

This Article also does not suggest that all speech regulations are equally permissible. Viewpoint- and content-based regulations, for example, are roundly prohibited. But such laws are equally prohibited regardless of the underlying type of speech at issue. These rules are therefore orthogonal to this Article’s central observation that all speech—political and non-political alike—receives equal protection from regulation. While there are only a few ways government may not regulate any type of speech, there are many ways it can regulate all types of speech. In declaring the hierarchy of speech protection a myth, this Article is chiefly concerned with showing that, as a holistic framework for understanding speech protection under the First Amendment, the hierarchy is an invented tradition disguising a reality of routine government supervision of speech boundaries.

Part I provides a descriptive account of the invention of the hierarchy myth and its lack of substantive force in shaping the doctrine since its creation. Section I.A briefly chronicles the post-New Deal trajectory of First Amendment expansionism from the 1930s through the mid-1970s and shows the absence of gradations in the level of protection afforded to covered speech in this period.16 16.See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018).Show More The remainder of Part I then details how the newly invented tradition of a hierarchy of speech protection never amounted to anything more than a doctrinal truism. It documents how all types of speech are treated at essentially an equal, moderate level of protection. First, Section I.B catalogues the numerous ways the doctrine regularly, and uncontroversially, permits restrictions on political speech that are necessary for democratic government to function. It illuminates that most political speech is actually highly regulable under this standard, directly refuting a core tenet of the hierarchy framework that political speech garners strict constitutional protection. Section I.C then shows how the hierarchy of speech protection is also false for purporting to provide sequentially lesser protection to non-political speech. It explains that most non-political speech garners the same level of protection as political speech under various speech-specific doctrines and generally applicable rules of free speech law that have the effect of ratcheting up protection for non-political speech above what the rhetoric of the hierarchy otherwise suggests. Finally, Section I.D offers possible explanations for why the hierarchy myth has persisted and what consequences it has had on speech protection.

Part II takes up the normative question of whether an equal speech protection doctrine is desirable. It posits that equalizing speech protection—and equalizing it at a level that permits significant though specific legislative control over speech—is ultimately beneficial for maintaining a healthy speech environment and thus a healthy democracy. An equal speech framework is superior to any purported hierarchy of speech model for essentially two reasons, discussed in Sections II.A and II.B respectively. First, there is little practical or constitutional difference between political and non-political speech, making any attempt to distinguish speech by type a doomed and unwise task. Second, acknowledging that political speech is, and should be, afforded a moderate level of protection will foster a more democratic, egalitarian, and resilient First Amendment. It would invite legal reforms aimed at safeguarding the stability and vitality of our public discourse, including reforms addressing the proliferation of disinformation and toxic speech.

Recent scholarship has gone far to document the undemocratic and inegalitarian effects of current First Amendment doctrine17 17.Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B.Show More but has struggled to identify a constitutionally compelling alternative.footnote_id_19_18 This Article does just that by focusing on reinterpreting the doctrine, as opposed to reinventing it. Properly understood, our current free speech doctrine is one of equal speech protection; and properly applied, this doctrine has enormous potential to produce egalitarian outcomes in which the vast majority of average citizens’ public discourse and democratic participation is affirmatively protected by legislatures from interference and manipulation. Thus, while doctrinal recitations by courts and commentators have long described a hierarchy of greater and lesser protected speech under the First Amendment, I show, by exposing its historical invention and its negligible impact on actual judicial decisions, how the hierarchical First Amendment is a sham. Instead, in origin, purpose, and application, the First Amendment prescribes equal treatment of varied kinds of speech, and making this clear can sharpen and improve advocacy, decisions, and responses to calls for reform.

  1. Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring in part and dissenting in part) (“This Court’s cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.”); Rucho v. Common Cause, 139 S. Ct. 2484, 2514 (2019) (Kagan, J., dissenting) (“[The First] Amendment gives its greatest protection to political beliefs, speech, and association.”); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (placing criticism of government officials “high in the hierarchy of First Amendment values”); Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)); Holder v. Humanitarian L. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.” (emphasis omitted)); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly ‘unprotected,’ it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech.” (emphasis omitted)); Connick v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . .”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976) (holding that the differences between commercial speech and “other varieties” of speech mean “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“The First Amendment affords the broadest protection to such political expression . . . .”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971) (“[The First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). ↑
  2. I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)). ↑
  3. See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine). ↑
  4. See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”). ↑
  5. 424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A. ↑
  6. The reasons undergirding the hierarchy’s invention are discussed infra Section I.A. ↑
  7. See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech). ↑
  8. A full explanation of these two trends follows infra Sections I.B and I.C. ↑
  9. As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning. ↑
  10. See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015). ↑
  11. See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015). ↑
  12. See infra Subsection I.C.1. ↑
  13. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). ↑
  14. See infra Section II.B. ↑
  15. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment). ↑
  16. First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text. ↑
  17. See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018). ↑

  18. Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B. ↑

Statutory History

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis. A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning. In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other, more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history. On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators. Scholars have, largely uncritically, tended to accept these distinctions. But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning. Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, this Article catalogues five different forms of statutory history inferences employed by the modern Court. It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject. In the end, this Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.

Introduction

The New Textualism1 1.“New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990).Show More championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.2 2.See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”).Show More A less well-known corollary of this interpretive approach is that Justice Scalia and his fellow textualists were and are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of a bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. Indeed, textualist Justices regularly use such “statutory history”—the cold record of how a statute evolved from one version to the next—to draw inferences about a statute’s substantive meaning even as they criticize the use of other, more traditional forms of legislative history, such as committee reports or floor statements.

Consider two examples:

First, in Arizona v. United States, the Court considered whether federal law preempts an Arizona statute that regulates the behavior of immigrants who are unlawfully present in Arizona.3 3.567 U.S. 387 (2012).Show More One of the state law provisions at issue made it a crime for illegal immigrants to seek employment.4 4.Ariz. Rev. Stat. Ann. § 13-2928(C) (2011).Show More The Court, in an opinion authored by Justice Kennedy, ruled that the provision was preempted by federal law.5 5.Arizona, 567 U.S. at 405.Show More In so ruling, the Court noted that Congress chose to impose civil, rather than criminal, penalties for immigrants who engage in unlawful employment—and backed this up with statutory history about the process by which the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.6 6.See id.Show More Specifically, Justice Kennedy’s opinion noted that draft proposals to make unauthorized employment a criminal offense were introduced and “debated and discussed during the long process of drafting IRCA” and that “Congress rejected them.”7 7.Id.Show More Based on this drafting history, the Court concluded that IRCA’s framework “reflects a considered judgment” by Congress that immigrants should not face criminal sanctions for engaging in unauthorized work.8 8.Id.Show More

Second, in Nichols v. United States, the Court considered whether the Sex Offender Registration and Notification Act (“SORNA”) requires sex offenders who move out of state to update their registrations with the jurisdiction they have left.9 9.136 S. Ct. 1113 (2016).Show More SORNA provides that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved” to “inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”10 10.42 U.S.C. § 16913(c).Show More Nichols moved from Kansas, where he was a registered sex offender, to the Philippines—a foreign country not covered by SORNA—and neglected to register his departure with the state of Kansas; he was convicted of violating SORNA because he had failed to update his registration with Kansas.11 11.Nichols, 136 S. Ct. at 1117.Show More The Tenth Circuit upheld Nichols’ conviction, concluding that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved” under SORNA.12 12.Id.Show More In a unanimous opinion authored by Justice Alito, the Supreme Court disagreed, ruling instead that SORNA does not require sex offenders to update their registration in a state that they have departed.13 13.See id.Show More In so ruling, the Court relied on the statute’s plain meaning, grammar rules, practical reasoning, and SORNA’s statutory history.14 14.See id. at 1117–18.Show More Specifically, the Court noted that the Wetterling Act, a predecessor statute that SORNA replaced, explicitly required sex offenders to “report the change of address to the responsible agency in the State the person is leaving”—but that Congress declined to retain that language when it enacted SORNA.15 15.See id. at 1116 (emphasis omitted).Show More “If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required,” the Court explained.16 16.Id. at 1118.Show More Congress’s decision to employ different language in SORNA, the Court reasoned, was significant: if Congress wanted to require sex offenders to update their registrations in the states they departed, “Congress could have chosen to retain the language in the amended Wetterling Act.”17 17.Id.Show More Because Congress chose not to do so, the Court concluded that SORNA did not require Nichols to update his registration in Kansas once he no longer resided there.18 18.See id.Show More

In both of the above cases, the Court’s references to statutory history were designed to provide contextual support for its chosen statutory constructions. In highlighting that Congress considered and rejected a proposal to impose criminal penalties on immigrants who engage in unauthorized work and that Congress changed the Wetterling Act text requiring registration updates in the state of departure when it enacted SORNA, the Court sought to demonstrate that its reading of the relevant statutes’ texts was consistent with Congress’s likely intent. But it did so without citing the typical commentary by individual legislators or congressional committees that we ordinarily associate with the label “legislative history”—rather, it focused on changes Congress made to the statutes’ texts and on background legislative circumstances, and it used those developments to make its own inferences about Congress’s intent.

The inferences from statutory history employed by Justices Kennedy and Alito in Arizona and Nichols are not anomalous. Indeed, they are a fairly familiar feature of the Roberts Court’s statutory jurisprudence. But while the use of statutory history has been part of the Court’s interpretive arsenal for some time, scholars have paid surprisingly little attention to it as an interpretive resource. To date, only one article has examined the Court’s use of statutory history in any detail—and that article did so only briefly, in passing.19 19.SeeJames Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017).Show More No article has studied the Court’s use of statutory history systematically, and no article has sought to illuminate the different types of inferences the Court draws from such history or to evaluate normatively the justifications offered for employing this form of history, in contrast to traditional legislative history.

This Article seeks to fill that void. It provides the first in-depth analysis of the multiple ways in which the modern Supreme Court uses statutory history to draw inferences about a statute’s intended meaning. While the Article is primarily doctrinal in nature, it draws from an empirical database of 574 statutory cases decided during the Roberts Court’s first thirteen-plus terms to supplement its analysis. Ultimately, this Article aims both to provide a catalogue of the different kinds of interpretive inferences the Court makes when examining a statute’s historical evolution—what the Article refers to as “statutory history”—as well as to evaluate whether textualist Justices’ willingness to employ statutory history can be squared with their unwillingness to examine traditional legislative history or other forms of background legislative context.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of statutory history is moderate—15.7% of the cases in the dataset employed such history; (2) all of the Justices, irrespective of their interpretive methodology, invoke statutory history in the opinions they author; (3) the Court’s most committed textualist Justices invoke statutory history more often than they invoke traditional legislative history; (4) there are at least five different forms of inferences that the Justices tend to draw from statutory history; and (5) nearly two-thirds of the statutory history inferences the Court employs conflict in some way with the parameters textualists have articulated to distinguish statutory history from traditional legislative history.

This Article proceeds in three Parts. Part I defines what is meant by the term “statutory history,” examines the ways in which this interpretive resource differs from traditional legislative history, and reviews the limited existing literature on statutory history. Part II reports data about the Roberts Court’s use of statutory history in the 574 statutory cases decided during its first thirteen-and-a-half terms. Part II also provides a catalogue of the different forms of inferences the Court draws from statutory history, as well as offers doctrinal observations about the Court’s use of this interpretive aid. Part III evaluates the theoretical implications of the Roberts Court’s approach to statutory history, noting that the decontextualized use of statutory history shifts to judges, rather than legislators, the authority to fill in the gaps between different versions of a statute—and that judges engage in substantial speculation when performing such gap filling. It argues that while some forms of statutory history approximate the logical inferences common to traditional textual analysis, others share important features in common with traditional purposive interpretive tools—and are thus inconsistent with the justifications textualists have offered for embracing statutory history while rejecting traditional legislative history. In the end, Part III suggests that textualist judges should either end their reliance on statutory history altogether or, better yet, broaden their interpretive toolkit to include other forms of background legislative contextual evidence, at least as a check on the inferences they draw from statutory history.

  1. * Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to James J. Brudney, Aaron-Andrew Bruhl, Catherine B. Duryea, William N. Eskridge, Jr., Margaret H. Lemos, Kevin Tobia, and participants at workshops at Yale Law School and the University of Southern California School of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Thanks also to Deans William M. Treanor and Michael A. Simons of Georgetown University Law Center and St. John’s University School of Law, respectively, for generous research support. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Kim Friedman, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. ↑
  2. “New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990). ↑
  3. See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”). ↑
  4. 567 U.S. 387 (2012). ↑
  5. Ariz. Rev. Stat. Ann. § 13-2928(C) (2011). ↑
  6. Arizona, 567 U.S. at 405. ↑
  7. See id. ↑
  8. Id. ↑
  9. Id. ↑
  10. 136 S. Ct. 1113 (2016). ↑
  11. 42 U.S.C. § 16913(c). ↑
  12. Nichols, 136 S. Ct. at 1117. ↑
  13. Id. ↑
  14. See id. ↑
  15. See id. at 1117–18. ↑
  16. See id. at 1116 (emphasis omitted). ↑
  17. Id. at 1118. ↑
  18. Id. ↑
  19. See id. ↑

  20. See James Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017). ↑

The Runaway Presidential Power over Diplomacy

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. These are just a few of many examples from recent years. The President’s assertedly exclusive powers over diplomacy have become a powerful yet rarely critiqued tool for withholding information from Congress and for rebuffing congressional supervision over the content and agents of international engagement.

This Article interrogates the constitutional concept of “diplomacy”—a word that, for all the emphasis the executive branch now puts upon it, was barely an English word at the time of the Framing and was not used during the Constitution’s drafting and ratification. Both structural reasoning and historical practice suggest that exclusive presidential powers over diplomacy should have a narrower ambit than executive branch lawyers currently claim. The Article excavates several forgotten limits on these powers. One is the distinction between policy and negotiation. The executive branch asserts exclusive power over both, but Congress has strong counterclaims to a constitutional power to establish policy objectives and to control outputs, such as votes in international organizations. Another limit relates to domestic-facing administrative agencies, which increasingly engage in regulatory coordination abroad. Both Congress’s traditional role in supervising agencies and the substance of these agencies’ work suggest that their international engagement should not necessarily partake of whatever exclusive powers the President holds over diplomacy and instead should be more subject to congressional control. The Article closes by proposing a distribution of power over international engagement that provides more control to Congress and by identifying institutional strategies that Congress could deploy to achieve this distribution.

Introduction

A core assumption of the executive branch is that the President possesses exclusive constitutional powers with respect to diplomacy. The White House and the Department of Justice routinely invoke these asserted powers to rebuff congressional interventions in foreign affairs. In 2020, for example, the Trump administration declared that Congress cannot specify that “[i]t is the policy of the United States” to help foreign allies combat corruption; cannot require the executive branch to give it notice prior from withdrawing from an important arms-monitoring treaty; and cannot require the Secretary of Commerce to provide Congress with a report on its use of statutorily delegated authority with respect to tariffs.1 1.Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020].Show More For executive branch lawyers, the “President’s exclusive prerogatives in conducting the Nation’s diplomatic relations are grounded in both the Constitution’s system for the formulation of foreign policy, including the presidential powers set forth in Article II of the Constitution, and in the President’s acknowledged preeminent role in the realm of foreign relations throughout the Nation’s history.”2 2.Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language).Show More

These sweeping claims fit poorly with our broader constitutional framework. As Justice Jackson famously instructed, assertions of exclusive presidential power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”3 3.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).Show More Yet the exclusive diplomatic powers claimed by the President have gone largely unexamined. With the exception of one recent decision focused on the power to recognize foreign nations, the Supreme Court has not confronted these issues.4 4.Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally).Show More Among scholars as well, the diplomatic powers occupy a distant back seat to two other major constitutional powers in the field of foreign relations law: the war powers and the treaty powers.5 5.The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54 (2002) (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law).Show More While countless articles explore these two domains, there is relatively little scholarship on the diplomatic powers.6 6.For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J. 907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61.Show More This remains true even as the executive branch has come over time, especially since the late 1980s, to invoke these assertedly exclusive powers more widely, stridently, and meaningfully.

The first task of this Article, therefore, is to provide a comprehensive account of exclusive diplomatic powers claimed by the President. Simply put, the scope of these asserted powers is breathtaking. When executive branch lawyers speak of exclusive power over “diplomacy,” they are actually sweeping together a bundle of five discrete powers. These are: the power to represent the United States abroad; the power to recognize foreign nations; the power to determine the content of diplomatic communications; the power to select the agents of diplomacy; and the power to control access to diplomatic information. Each of these powers has its own constitutional pedigree and implicates different institutional values. The first two of these powers are well-established but narrow, while the latter three are deeply contested and dangerously broad. The exclusive power asserted over content, for example, is routinely claimed to encompass total control over the “time, scope, and objectives” of negotiations.7 7.Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E](using similar language).Show More And it reaches not just talk but also actions, such as the casting of U.S. votes within international organizations. When Congress issues mandates that run counter to these claims of exclusive executive power, the executive branch simply needs to get a legal opinion from the Department of Justice’s Office of Legal Counsel (“OLC”) to have its way.

Further underlying all claims of the “President’s exclusive power to conduct diplomacy”8 8.OLC Opinion of Sept. 19, 2011, supra note 2, at 116.Show More is an exceptionally capacious conception of “diplomacy.” Whether the subject is war or science, whether the forum is an international organization or a bilateral meeting, whether the executive branch officials involved are traditional diplomats or insurance regulators—all is “diplomacy” to the executive branch and therefore not subject to congressional control.9 9.E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry).Show More As OLC has put it in finding that Congress cannot prevent a technology-focused agency from negotiating with Chinese counterparts, “We have described the President’s authority over international negotiations as extending to any subject that has bearing on the national interest.”10 10.OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted).Show More

This panoramic conception of “diplomacy” greatly expands the already substantial executive branch powers claimed over diplomatic content, agents, and information. Yet as this Article shows in its second overall contribution, this conception is far from constitutionally foreordained. Indeed, the word “diplomacy” itself was barely an English word at the time of the Framing and does not appear to have been used at all during the many debates surrounding the Constitution’s drafting and ratification.11 11.See infra note 100 and accompanying text.Show More Rather, at that time, there was at most a sense that the President had certain constitutional prerogatives with respect to the negotiation of treaties, which in turn would ultimately require the advice and consent of the Senate. And as the United States came over time to engage in many forms of international engagement other than treaties, Congress left most management with the executive branch but periodically claimed control over aspects of this engagement.

In particular, I identify four ways in which Congress has asserted control in the past over aspects of U.S. international engagement in ways that undermine the broad view of “diplomacy” adopted by today’s executive branch lawyers. These four ways can be thought of as lost limits on exclusive presidential power over diplomacy. These limits are in addition to the very important power of Congress to control the implementation (or non-implementation) of most U.S. commitments as a matter of domestic policy—a power which the executive branch continues to acknowledge as belonging to Congress.12 12.For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017).Show More One limit was structural: to view the President as having exclusive power over the process of negotiation and the specific instructions given to negotiators, but to consider Congress entitled if it wished to form foreign policy objectives on the front end and to control acts with international legal significance at the back end. A second limit was content-based: to define “diplomacy” as encompassing only issues involving certain subject matters or above certain thresholds of importance. A third limit was institutional: to exclude domestically focused agencies from the ambit of “diplomacy,” such that Congress could exercise its usual level of control with respect to their activities abroad and with respect to how they interfaced with other executive branch actors regarding international engagement. A fourth limit developed from the rise of international organizations, as Congress initially claimed and exerted greater control as a price for supporting U.S. entry and participation in these organizations.

This nuanced and complex history has no place in OLC’s current approach to the diplomatic powers. Rather, by selectively invoking early sources and reading them out of context, OLC gives the impression that the exclusivity of the whole bundle of the President’s diplomatic powers is longstanding, firmly settled, and plainly applicable to all forms of modern foreign relations. The Trump administration took this perspective to its logical extreme, repeatedly invoking diplomatic powers in letters objecting to draft bills and in several important refusals to obey congressional mandates.13 13.See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement).Show More Yet while the Trump administration was unusually truculent, its understanding of the diplomatic powers flowed from OLC memoranda written during both Democratic and Republican administrations of the prior few decades that overread sources, ignored historical practice at odds with their positions, and failed to grapple with the profound changes in U.S. international engagement from the time of the Framing to the present.

Given the thin foundations of executive branch claims, congressional power over international engagement is ripe for reinvigoration. The final goal of this Article is to consider how such reinvigoration could be accomplished. This is not an easy avenue of inquiry, and it does not lend itself to any very satisfying solution. Doctrinally, I argue in favor of an intermediate approach between the extreme positions staked out by the executive branch and an alternative of complete congressional supremacy. There are a number of possible ways to accomplish this, and I offer some suggestions in the spirit of opening bids. Specifically, I suggest using two of the lost limits on “diplomacy” to achieve a more tempered balance—limits that draw on historical practice, respond to functional changes in U.S. foreign relations since the Framing, and emphasize the core structural concept of checks and balances. The first is to acknowledge congressional power to set policy objectives at the front end and to mandate certain outcomes at the back end (such as votes cast in international organizations) for negotiations whose outcomes will not otherwise be brought to the Senate or Congress for approval. The second is to treat congressional supremacy over domestic-focused agencies as constant with respect to both the domestic and foreign activities of these agencies. The use of these limits would rein in the risks of runaway presidential power over the content, agents, and information associated with U.S. international engagement.

Especially in the last thirty years, the executive branch has used its institutional power to make constitutional fictions about diplomacy into practical realities. For Congress to regain constitutional clout, it must bring its own institutional power to bear. The groundwork has already been laid by Congress’s repeated willingness to enact statutory provisions asserting control over diplomacy. The challenge for Congress is in getting the executive branch to recognize these provisions as binding as a matter of constitutional law. Broadly speaking, Congress can pursue three strategies towards this end. First, congressional committees can develop their own accounts of the constitutional allocation of the diplomatic powers through hearings and reports. Second, Congress can raise the stakes of executive branch non-compliance through legislative tactics, such as anti-severability provisions that require the executive branch to obey mandates whose constitutionality it questions if it wishes to continue to receive related appropriations. Third, Congress can seek to involve the courts. This last strategy has both the highest risks and rewards and therefore should be pursued with particular care.

I focus in this Article on the distribution of constitutional power with respect to diplomacy, broadly defined. But the account given here contributes more generally to the literature regarding the separation of powers. One contribution goes to the existing literature on the role of OLC. The findings in this Article support those that view OLC as an enabler of exclusive presidential power—and further suggest that the very transparency with which OLC expresses its views helps rather than hinders this enabling. Another contribution is to complicate some core assumptions about the role that historical practice plays in separation-of-powers disputes. While historical practice is often thought to be a tool of presidential power, it is notable how much historical practice there is—albeit uncited by OLC—that supports Congress’s authority to issue mandates with respect to international engagement. This suggests that, as a structural matter, historical practice may favor findings that Congress and the President have concurrent powers rather than findings that either branch has exclusive powers. Finally, this Article serves as a reminder of how much work needs to be done at the intersection of foreign relations law and administrative law. Tropes like “diplomacy” conceal complex questions about the allocation of powers in a world in which there is no robust divide between what is foreign and what is domestic.

The rest of this Article follows the path described above. Part I categorizes the diplomatic powers into five discrete powers—power over representation, recognition, content, agents, and information. Although Congress disputes the executive branch’s claims to exclusive powers over the last three of these powers, the executive branch has institutional advantages that enable it to disregard congressional mandates. Part II shows that OLC has supplemented the breadth that comes with these five powers with depth—by defining “diplomacy” far more broadly than is warranted by evidence from the time of the Framing, historical practice, or structural constitutional principles. It identifies four lost limits on the constitutional concept of “diplomacy,” of which one is structural, one is based in subject matter, one is institutional, and one is tied to the special status of international organizations. Part III proposes a doctrinal allocation that provides more control to Congress and identifies institutional strategies that Congress could deploy to achieve this distribution. It also notes several broader implications that this Article holds for the study of the separation of powers.

This Article focuses on the constitutional conflict between Congress and the Presidency with respect to control over diplomacy. With this focus come inevitable limitations, two of which deserve specific mention. First, some of the power struggles described here—particularly regarding control over agents and information—are entwined with broader constitutional questions about the extent to which Congress can control the structure of the executive branch and demand information from it. I do not address these questions, but rather focus on the extent to which power struggles relating to control over international engagement do or should differ from the broader baseline, whatever it is. The second limitation is that I focus on legal claims rather than on policy outcomes. It is possible and indeed often the case that the executive branch will object on principle to a legislative provision related to diplomacy even where it is either in full agreement with the policy set forth in this provision—or willing to adhere to this policy in practice to placate members of Congress. But while these factors reduce the practical effect of constitutional disagreements, they are not full substitutes for the constitutional allocation of control. One of the many grim lessons left over from the Trump administration is that law rather than norms can be the only boundary between action and constraint.

  1. Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020]. ↑
  2. Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language). ↑
  3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring). ↑
  4. Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally). ↑
  5. The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54
    (2002)

    (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law). ↑

  6. For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J
    .

    907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61. ↑

  7. Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E] (using similar language). ↑
  8. OLC Opinion of Sept. 19, 2011, supra note 2, at 116. ↑
  9. E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry). ↑
  10. OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted). ↑
  11. See infra note 100 and accompanying text. ↑
  12. For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017). ↑

  13. See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement). ↑

©Virginia Law Review Association. All rights reserved.