The Presidential Statutory Stretch

Abstract

This paper, prepared for a Fall, 2015 conference in honor of Professor Harold Bruff, argues that, in certain circumstances, a "statutory stretch" in defense of a presidential initiative may be both justified and more protective of the rule of law than would be bolder claims of exclusive executive authority under Article II. Such a rhetorical strategy may be superior in preserving an ethos of legal accountability within the executive branch and implicitly invites Congress to respond with legislative change if it disapproves the presidential action. It is a strategy that should be reserved, however, for truly exigent circumstances in which the Administration is willing to expose its argument to public scrutiny. Government lawyers assisting in the "stretch" should insure that their clients understand the vulnerabilities to their argument and should not knowingly offer weak arguments to avoid legal constraints aimed at avoiding grievous harm to individuals.