Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?

In Association of Data Processing Service Organizations, Inc. v. Camp, Mr. Justice Douglas famously remarked, 'Generalizations about standing to sue are largely worthless as such.' My sense is that Justice Douglas’ skepticism about generalizations applies with even greater force when the question is the extent of the President’s power under the U.S. Constitution to direct other officers concerning the execution or implementation of federal law. But, one generalization might be hazarded: Almost anyone who addresses the topic argues from historical practice, not merely from the text of the Constitution or from judicial precedent. The silence, vagueness or ambiguity of the constitutional text on most matters of operational consequence, and the paucity of judicial pronouncements, means that the issues of presidential directive power are addressed largely in Congress and within the Executive Branch. In these venues of lawmaking and implementation, grappling with issues of presidential authority and congressional power are a part of the ordinary routines of government. However sensible our reliance on practice for guidance, we should pause to consider just how deeply problematic that reliance might be. The problems occur at two levels. First, what is the normative claim of practice as evidence of what the law is or should be. Practice, repeated prior actions, or, perhaps, particularly salient events, are just facts. What gives them the power to bind us even presumptively. Second, assuming the normative force of practice, how is it to be interpreted? If we recognize a practice as ours and as having a claim on the legal imagination, how are we to give it meaning. By seeking the meaning these actions had for the actors. By close attention to the contexts in which they occurred. In their interpretation by contemporaneous or later commentators. I do not want to dwell on the deep questions involved in what gives practice normative force. I will focus instead on the second difficulty, the difficulty of understanding exactly what the normative claim or reach of a past practice might be. For, the practice of American government has proceeded through the multiple actions and claims of executive and congressional officials in multifarious contexts and over a significant period. It is revealed both by what people did and what they said. And its understanding is illuminated by the background presumptions of the legal literature of the times as well as contemporaneous public reaction. In the end I want to argue that recognition of the difficulty of deriving constitutional meaning from governmental practice contains its own normative implications. The very opaqueness of the normative claims of the past demands a particular form of responsibility from lawyers operating in the present. When combined with the knowledge that most issues of executive power will themselves be decided by practice, not by judicial opinions, we who struggle to discern the meaning of past practice have a special ethical duty not to overstate our positions or to ignore contrary evidence. We must recognize that our institutional arrangements have always been more experimental and various than can be captured by a single narrative.