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Session Summary: Public Law at the Mid-Term of the Trump Era

Submitted by Lou Virelli

On Friday morning, August 10th, a group of public law scholars met to discuss submissions from several of the participants on the topic of public law at the mid-term of the Trump Administration. The group discussion was moderated by Professor Fernando Laguarda from American University Washington College of Law.

The first submission came from Professor Zachary Price from the University of California Hastings College of the Law. Professor Price’s work considered the role of courts in a time of deep political partisanship. He proposed that the courts employ a new judicial “ethos” or principle (rather than a broad theory of judging designed to supplant traditional interpretive approaches) that he called “symmetric constitutionalism.” Under the principle of symmetric constitutionalism, courts should seek to issue decisions that minimize partisan benefits by “lean[ing] towards outcomes, rationales, and doctrines that confer valuable protections across both sides of the nation’s major political divides, and away from those that confer sharply one-sided benefits.” The group then discussed how this principle could be applied in a variety of different constitutional contexts.

Professor Lou Virelli from Stetson University College of Law introduced his project titled Agency Deadlocks. Professor Virelli described the possibility of tie votes (“deadlocks”) among multi-member agency heads, particularly in the current political environment where, due to stagnant appointment processes, many independent agencies are understaffed such that odd-numbered boards or commissions are operating with an even number of members. The agency most vulnerable to a tie vote is the Federal Election Commission (FEC), which was designed intentionally by Congress to be run by an even number (6) of commissioners who are equally split along party lines. Using the FEC as a test case, Professor Virelli analyzed whether tie votes by agency heads should receive Chevron deference from reviewing courts, ultimately concluding that some lesser measure of deference is most appropriate.

The next presenter was Professor Michael Dimino of Widener University Commonwealth Law School. Professor Dimino’s submission, Actions Speak Louder than Words: When is Conduct “Expressive”, focused on the distinction between expressive and non-expressive conduct and between claims for religious and free-speech-based exemptions from generally applicable laws under the First Amendment. Using several of the Court’s recent decisions, including Masterpiece Cakeshop, as examples, Professor Dimino argued that “conduct should not be treated as expressive unless, in context, a reasonable observer would understand the conduct to be communicating a message, and would identify that message with the actor.”

Finally, Professor Laguarda offered his thoughts on Presidential Tweeting as Framing Executive Power. Drawing from recent examples of President Trump communicating with the public via Twitter, Professor Laguarda first distinguished the President’s tweets from more traditional categories of presidential executive speech that are designed to either explain or direct executive action. He categorized President Trump’s tweets as residing in a third category, which he called executive framing. He explained executive framing with the example of President Trump’s announcement on Twitter that transgender individuals would no longer be allowed in the U.S. military. Since that tweet neither explained nor directed executive action (the military made clear that it did not consider the tweet a formal directive to act), its purpose appeared to be publicly framing the issue for political purposes. Professor Laguarda went on to discuss some of the questions raised by a president’s use of this type of speech, as well as some of the possible legal and political consequences thereof.

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