Katherine Shaw (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Speech, Intent, and the President (Cornell Law Review, Vol. 104, Forthcoming) on SSRN. Here is the 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 ongoing litigation, including over the President’s “travel ban” orders. Courts evaluating the lawfulness of those orders have wrestled with what weight to accord the President’s statements, both from the campaign and following inauguration, 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 — and a number of others ongoing at the time of this writing — highlight the absence of any coherent conceptual framework for assessing both presidential speech and presidential intent. This Article attempts to fill that gap.