In recent years, textualist scholars have advanced the argument that the First Amendment only applies to legislative action, and thus that executive authority is unencumbered by the First Amendment’s prohibitions. According to this argument, the words “Congress shall make no law” cannot be construed to limit the powers of the executive branch. Upon first glance, it might seem that a textualist reading of the First Amendment’s first word would give the executive branch carte blanche in the regulation of religion, expression, and association. Yet as this Article seeks to show, a textualist reading of the First Amendment’s first word does not necessarily generate legal conclusions starkly at odds with modern-day doctrine. This is because as a general rule, statutes authorizing executive action either (a) empower the executive to abridge First Amendment freedoms (in which case the statute itself violates the First Amendment) or (b) do not empower the executive to abridge First Amendment freedoms (in which case executive actions abridging First Amendment freedoms are ultra vires). While the textualist argument implies that some First Amendment challenges to executive actions should be recast as claims that those executive actions are ultra vires, the results in most cases may be the same as if the First Amendment applied to the executive directly. Importantly, this equivalence only holds when the executive acts pursuant to legislative authorization under Article I of the Constitution. When the executive acts pursuant to its own Article II inherent authority, actions that infringe upon First Amendment freedoms do not necessarily violate any distinct constitutional provision. When, for example, the President acts as “Commander in Chief,” a strict textualist could conclude that the President is not bound by the First Amendment at all. Notably, federal courts’ deference to the executive in First Amendment cases involving military matters already seems to reflect the principle that the force of the First Amendment’s prohibitions might hinge on the source (Article I vs. Article II) of the executive authority being exercised.
Daniel J. Hemel
Executive Action and the First Amendment's First Word,
40 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol40/iss3/2