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Mark Tushnet, The President and Individual Rights, 29 Wm. & Mary Bill Rts. J. 809 (2021).

Abstract: Introduction: Some Groundwork Departmentalist constitutional theory asserts that members of each branch have the authority to use their own understandings of the Constitution when they act within their prescribed domain.1 Specifically, departmentalists claim that neither the President nor members of Congress are required to accept the interpretations of the Constitution offered by the courts, either in evaluating possible courses of action beforehand or bowing to a judicial decision after the event as a matter of principle.2 Sometimes departmentalists confine their claims to constitutional interpretation of provisions about each department’s scope of authority.3 So, for example, a departmentalist president might claim that Article II gives her the power to remove at will any principal officer of the government from office even though Congress has purported to limit the removal power in ways that seem consistent with Supreme Court precedent.4 Individual rights cut across all three branches.5 Assume that Congress is exercising one of its enumerated powers. For present purposes, I mean by "legal" rights those that can be enforced in court.7 That a right is associated with a constitutional provision means (a) that it is not something the courts would find required by the Constitution itself,8 (b) that it advances the values underlying the judicially enforced right, and (c) that the associated right falls within a range of reasonable interpretation of some constitutional provision even though the courts have adopted a different interpretation.9 With the notions of "legal rights" "associated with" constitutional rights in hand, what can be said about the President and individual rights? Section B then turns to the case where the President and her appointees agree with the courts about the content of an individual right.13 Administrative constitutionalism in this mode means that executive officials act within their jurisdiction to protect the legal rights the courts would recognize.14 It retrieves an argument made decades ago by Bernard Meltzer, that a world with more remedies for the same rights violations might not be better-from a rights-protective point of view-than a world with fewer such remedies.15 A brief Conclusion summarizes the argument.16 I. The President’s Discretionary Powers One standard example offered in defense of departmentalism is President Thomas Jefferson’s decision to pardon those who had been convicted of violating the Federalist-inspired Sedition Act of1798.17 Jefferson did so because he believed that the Sedition Act was unconstitutional on federalism and freedom-of-expression grounds.18 And he did so in the face of lower court decisions upholding the statute against constitutional challenges.19 Another standard example is President Andrew Jackson’s veto of a bill rechartering the Bank of the United States.20 Jackson’s veto invoked policy and constitutional (federalism) objections to the rechartering.21 Notably, the Supreme Court here had rejected the constitutional challenges.22 Finally, presidents can recommend that Congress enact a statute providing more protection to individual privacy from government surveillance than the Supreme Court has or would hold constitutionally guaranteed.23 These three examples involve exercises of discretionary presidential powers.24 The key point about discretionary decisions is that before, and sometimes even after, they are made they necessarily create no legal rights.25 No one convicted of violating the Sedition Act had a right to a pardon-even in the form of a right to have a President who believes the Act unconstitutional issue a pardon.26 Or consider United States v. Lovettvphantom1 There Congress had directed the President to withhold pay from three named government officials.28 President Franklin Roosevelt signed the bill, stating, "I have been forced to yield, to avoid delaying our conduct of the war. Constitutional rights either trump other non-rights social values, in Dworkin’s terms, or compete against those other values.34 In the first case the contours of the constitutional right are defined with reference to those other values.35 So, for example, the right to free expression trumps the values of social stability, but the right does not encompass (in the United States) utterances that (to oversimplify) are intended to and are likely to incite imminent lawless action.36 In the second case, the values associated with the right are balanced against other social values such as stability or, in the usual example, the ability of people to use streets and parks for their ordinary purposes.37 In either version, a President’s discretionary action that takes into account the values associated with a constitutional right might bump up against other social values.38 In the usual case this simply produces an ordinary policy judgment that, in the policymaker’s view (here, the President’s), public policy is better advanced by the decisionmaker’s preferred course of action.39 Sometimes, though, the other social values are also associated with individual rights.