THE PRESIDENT’S TWO BODIES - Columbia Law Review

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office.

The goal of this Article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It elucidates both our contestations over and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

The full text of this Article can be found by clicking the PDF link to the left.

* Assistant Professor, Harvard Law School. For generous engagement with this project at various stages, I am grateful to Kate Andrias, the Hon. David Barron, Bob Bauer, Niko Bowie, Curtis Bradley, Jessica Bulman-Pozen, Evan Caminker, Dan Carpenter, Adam Cox, Andrew Crespo, John Dearborn, Chris Desan, Charlie Donahue, David Driesen, Justin Driver, the Hon. Harry T. Edwards, Dick Fallon, Noah Feldman, Jody Freeman, Jerry Frug, John Goldberg, Jack Goldsmith, Tara Grove, Jon Gould, Aziz Huq, Sam Issacharoff, Vicki Jackson, Maddy Joseph, Quinta Jurecic, Liz Kamali, Andrew Kent, Madhav Khosla, Mike Klarman, Genevieve Lakier, Daryl Levinson, Anna Lvovsky, John Manning, Jerry Mashaw, Gillian Metzger, Frank Michelman, Martha Minow, Julian Mortenson, Anne Joseph O’Connell, Nick Parrillo, David Pozen, Aziz Rana, Judith Resnik, Shalev Roisman, Noah Rosenblum, Steve Schaus, Larry Schwartztol, Stephen Skowronek, Matthew Stephenson, David Strauss, Cass Sunstein, Seth Tillman, and workshop participants at Cardozo, the University of Chicago, Harvard, Michigan, NYU, and Penn. For excellent research and editorial assistance, I thank Charlotte Butash, Grayson Clary, Yoseph Desta, Kelsey Fraser, Harleen Ghambir, Emerson Gordon-Marvin, Molly Gupta, Spencer Livingstone, Laya Maheshwari, Marissa Marandola, Emily Massey, Ben Miller-Gootnick, Matt Morris, Julia Solomon-Strauss, Nicole Williams, and the editors of the Columbia Law Review. For tireless help tracking down sources, I thank Harvard Law research librarian AJ Blechner.

Introduction

“For the King has in him two bodies, viz., a body natural, and a body politic. His Body natural (if it be considered in itself) is a body mortal, subject to all infirmities that come by nature or accident . . . . But his body politic is a body that cannot be seen or handled, consisting of policy and government, and constituted for the . . . management of the public-weal . . . .” 1 Case of the Duchy of Lancaster (1561) 75 Eng. Rep. 325, 326; 1 Plowd. 212, 213; see also Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology 7–9 (Princeton Classics Ed. 2016).

“If I take the two phases, the President and the Presidency, the Man and the Institution, together, it is because, as I see it, while they are distinguishable at certain times and in the light of certain events, they are nevertheless inseparable.” 2 Louis Brownlow, The President and the Presidency 2 (1949).

Our Constitution creates an office of “the President” to which a person is elected every four years. In parsimonious terms, Article II vests the executive power in the President. 3 U.S. Const. art. II, § 1, cl. 1. But just what is the relationship between the person of the president and the office or institution of the presidency? The question is at the core of cases throughout the Article II canon. It is also at the crux of current debates about presidential power. Take a look:

Are the personal motives of the president relevant to the constitutional exercise of the powers of the presidency? 4 See Trump v. Hawaii, 138 S. Ct. 2392, 2417–18 (2018); cf. Nixon v. Fitzgerald, 457 U.S. 731, 755–56 (1982) (recognizing absolute immunity from damages liability in part so as not to have to investigate the president’s motive).
Does the institution of the presidency necessitate immunity—from criminal indictment, injunctive relief, or civil damages—for the person of the president? 5 See Clinton v. Jones, 520 U.S. 681, 701–06 (1997); Fitzgerald, 457 U.S. at 751; United States v. Nixon, 418 U.S. 683, 707–13 (1974); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498 (1866); United States v. Burr, 25 F. Cas. 30, 34–35 (C.C.D. Va. 1807) (No. 14,692d).
Can the institution of the presidency pardon the person of the president? 6 See Jack Goldsmith, A Smorgasbord of Views on Self-Pardoning, Lawfare (June 5, 2018), https://www.lawfareblog.com/smorgasbord-views-self-pardoning [https://perma.cc/6ZS7-UZQQ] (collecting competing views).
Who may assert executive privilege: only the sitting president or also his predecessors in office? 7 See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 448–50 (1977). And to what materials does the presidential privilege extend? 8 This question is at least as old as the trials of Aaron Burr, see United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694) (“Letters to the president in his private character, are often written to him in consequence of his public character, and may relate to public concerns.”), and has recurred in current debates. For an illuminating account that applies Ernst Kantorowicz’s framework of the body natural/body politic to President Trump’s two twitter accounts (@POTUS and @realDonaldTrump), see Quinta Jurecic, Body Double: What Medieval Executive Theory Tells Us About Trump’s Twitter Accounts, Lawfare (Apr. 24, 2017), https://www.lawfareblog.com/body-double-what-medieval-executive-theory-tells-us-about-trumps-twitter-accounts [https://perma.cc/RP3A-XG9N].
Can the sitting president acquiesce to legal constraints on the presidency, thereby restraining the powers of the office? 9 See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 495–98 (2010); Morrison v. Olson, 487 U.S. 654, 685–93 (1988); INS v. Chadha, 462 U.S. 919, 954–59 (1983).
Do orders made at the whim of the incumbent constitute binding presidential policy, or is some process of the institutional presidency required? 10 See Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2221–30 (2018) [hereinafter Renan, Presidential Norms] (documenting a “deliberative presidency” norm and its institutional characteristics).

We cannot really answer these questions without some understanding of the relationship or relationships between the individual and the institution at the center of Article II. Yet legal doctrine has alluded to that nexus mostly in passing, leaving the constitutional concept of the President underdeveloped. Even within the same doctrine or case, the Court’s separate opinions often proceed from incommensurable (and often unarticulated) starting points relating to the president/presidency.

This Article offers a more systematic account of “the President” as a constitutional concept. Two distinct understandings emerge from the case law and commentary. On one view, there is no conceptual space between the individual elected to office and the office itself. Rather, the office is a repository of formal powers that the person possesses fully. The individual arrives in office with—indeed, is elected because of—particular ideological, political, and moral commitments, and he is to execute this vision of policy and governance. His personal leadership is the signal, albeit ephemeral, characteristic of the office. As a legal construct, “the President” is a he (perhaps one day a she).

On the other view, the presidential office is an institution. It is comprised of certain features—deliberative practices, substantive commitments, and institutional constraints—that are not fully within the control of any individual occupant. The characteristics of the office are more stable, the exercise of presidential power more continuous. The institution is a composite; the incumbent is not alone. These other actors protect and even augment presidential power, even as they entrench limits on the will of the sitting president. Presidential commitments—expressed through norm-governed practices, executive precedents, statutes, regulations, even litigation settlements—give structure and content to a more impersonal and indefinite office. As a legal construct, “the President,” if not quite a they, is at least an it. 11 Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 239 (1992).

This ambivalence dates to the Founding, when the powers of the institution were created with the person of George Washington firmly in view. It is made only starker by political developments of the intervening centuries. 12 Aspects of this duality have long been a focus of political science, in which a central disagreement among those who study the presidency has been whether personal and particularistic or impersonal (institutional and structural) perspectives better account for presidential power in American politics, or better predict presidential decisionmaking. See infra notes 170–181 and accompanying text (discussing these debates and some of the efforts toward synthesis). Our major disagreements and confusions about presidential power are disagreements that track what we might think of as the fault lines between the President’s “two bodies.”

My central claim is conceptual and analytic. As a constitutional conception, “the President” is an amalgamation of the individual president and the institutional presidency. Public law reveals different perspectives on how to manage—but cannot escape—this central tension. Rather, this duality is the constitutional office of the President. An array of seemingly disparate debates, both longstanding and quite current, on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the criminal indictability of a sitting president are elucidated through this prism.

Either “body,” on its own, misses something foundational about the nature of presidential power. Yet there is an overly personal thread in our Article II jurisprudence, a fixation with the individual notwithstanding the rise of the institutional presidency as a source of capacity, accountability, and legitimacy for the office. We see this, for example, in theories of an illimitable presidential prerogative and in some of the doctrine and advocacy around presidential immunities. These aspects of our law misconstrue how the presidency has accreted real or effective power. As a result, they offer a distorted view of the presidency as it has come to exist. We do not have a “one-man branch” of government (if we ever truly did), and such a president would not have the scope of power and discretion that the American presidency has developed.

Our current constitutional and political moment, however, helps to crystalize the risk from the other end as well. A public law that erases the incumbent’s influence from the decisions of the presidency risks sanitizing arbitrary and animus-inflected power. It also understates the role for individual judgment and charismatic leadership that our constitutional culture has come to expect and desire. There is a person at the heart of the presidency. He has agency and he has will. His moral and political clout—and his personal power, for good and ill—is a defining feature of the American constitutional experience.

There is a fundamental interdependence between the President’s two bodies. To be tolerably responsive to problems of legitimate authority, governance, and legal accountability—that is, to core occupations of public law—a theory of presidential power must recognize the role that both bodies are playing. The President’s duality is inescapable, and it is even in some respects desirable. But it poses a recurring dilemma for how public law engages questions of presidential power. Lawyers and jurists must negotiate this tension context by context, and they should do so with reference to the substantive constitutional values at stake. But a crucial first step, and the goal of this Article, is to make the duality central to American public law.

The argument proceeds as follows. Part I builds the two-bodies framework. It first uses the construct of the king’s two bodies, at a formative moment in its development, as a way into the presidency. A set of functional axes or fault lines comprise the king’s duality: One body is personal, temporary, and singular; the other is impersonal, continuous, and composite. Part I then sketches stylized accounts of what presidential power under either “body,” standing alone, might look like. These single-body stories bring into view what each perspective offers—and also what it obscures—about the nature of presidential power. Part II grounds the two-bodies framework in some historical and political context. It shows as well the absence of any overarching theory of the president/presidency in the scholarship. Constitutional and political science accounts have oscillated between president- and presidency-based perspectives. Yet the relationship between the two bodies remains undertheorized, including—and perhaps especially—as a matter of public law.

Parts III–V establish the President’s duality as the central tension of the presidential office. This is an encompassing claim, and it requires extensive substantiation. Organized around the duality’s personal/impersonal, temporary/continuous, and singular/composite dimensions, these Parts show how the two-bodies prism illuminates our major confusions and disagreements about presidential power. Approaching the constitutional presidency in this way brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law—ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms—as a shared effort to manage the President’s duality. And it helps us to unpack what is at stake—for presidential legitimacy, governmental capacity, checks and balances, and our substantive constitutional commitments—in how public law handles this defining ambiguity.

Part VI synthesizes the patterns and themes that emerge. It argues that the President’s “two bodies” is the conception on which our understandings of presidential power rest. 13 Cf. Martin Loughlin, The Constitutional Imagination, 78 Mod. L. Rev. 1, 12 (2015) [hereinafter Loughlin, Constitutional Imagination] (“[I]deology not only has a distortive or legitimatory role: it also has a constitutive function . . . . Ideology becomes the central concept of the constitutional imagination, the concept on which our understanding of the constitution rests.”). The duality enables public law to equivocate on the constitutional idea of “the President”: It obscures the ways in which each body creates anxieties about presidential power by emphasizing attributes that inhere in the other body and implying that those attributes pertain to the President as a whole. Yet the duality is also constitutive of a presidential office that embodies aspects of each; it orients practice toward these two intractable but ever-present impulses for what the constitutional office should actually entail.

Public law theory cannot solve or somehow move beyond the two-bodies paradox. But it can get the nature of the problems right. Recognizing the President’s duality provides analytical coherence to the structure of presidential power. It elucidates both our contestations over and the constituted reality of the constitutional presidency. And it suggests that presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

Before beginning, a note on the project’s scope: My focus is the American presidency. In a sense, the presidency is one application of a more endemic feature of constitutional government—and of constitutional culture more generally. A duality of roles is inherent in the concept of office. And a cult of personality—from Shakespeare’s King Henry V, “twin-born with greatness,” 14 William Shakespeare, King Henry the Fifth act 4, sc. 1. An extensive literature explores Shakespeare’s use of the king’s two bodies, as well as Kantorowicz’s own treatment of the two bodies in Shakespeare and other fiction. See, e.g., Victoria Kahn, Political Theology and Fiction in The King’s Two Bodies, 106 Representations 77, 79 (2009) (positing that Kantorowicz’s work presents two central arguments: the “Christological origin of secular constitutionalism in Shakespeare’s England,” and “the secular religion of humanity best articulated by Dante”). to our Madisonian separation of powers, to the Great Chief Justice, to the lions of the Senate, to the Notorious RBG—has always shaped how we think about institutional power and its relationship to personal leadership. There are meaningful continuities between the president/presidency and these other constitutional offices, 15 Legislative standing, for instance, illuminates both continuities and discontinuities with the presidency. At the crux of cases like Raines v. Byrd, 521 U.S. 811 (1977), is the question of how to understand the Members’ injury: Is it an institutional injury (as the majority suggests, see id. at 821), a personal injury, or is it impossible to fully pry the two apart (as Justice Breyer argues in dissent, see id. at 841 (Breyer, J., dissenting))? If the conceptual and legal challenge points to a similarity with the President’s two bodies, the available doctrinal solutions illuminate an important difference. In the legislative context, the collective institutional body provides a way out of the two-bodies problem by looking to group action as indicia of institutional power.

The two-bodies framework can also be extended inside the agencies, for example, with respect to the question of when, or under what conditions, the reason-giving of the Department of Commerce, as an institution, impermissibly diverges (and “distract[s]”) from the reasons of the Secretary as an individual. See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2572–76 (2019). as well as between the president and leaders more generally—whether corporate, nonprofit, social movement, or governmental—for whom a duality of identities poses ongoing conceptual, normative, and even legal difficulties. 16 This duality is especially stark in connection to tech companies like Facebook, which have come to play a sweeping role in American life but still operate under the close control and personality-driven vision of a particular founder. See, e.g., Chris Hughes, It’s Time to Break Up Facebook, N.Y. Times (May 9, 2019), https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html (on file with the Columbia Law Review) (arguing that too much power is wrapped up in the person of Mark Zuckerberg). The phenomenon might be extended further still, from the role of jurors (who straddle expectations of a relatively mechanical law-follower and a personal expositor of local mores) to the meaning of citizenship itself.

Yet the relationship between individual presidents and the presidency is also distinctive. The idea that the person of the president, by virtue of his election, becomes the singular representative of “the people” as a whole figures prominently in American constitutionalism. Our prevailing theories of legitimacy—of the administrative state and of American democracy, at least at the national level—rely on an idea of a presidential “mandate” that is almost mystical given its cultural and constitutional force combined with the paucity of its empirical and theoretical support. 17 See Robert A. Dahl, Myth of the Presidential Mandate, 105 Pol. Sci. Q. 355, 356 (1990); Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. Rev. 1217, 1231–46 (2006); see also B. Dan Wood, The Myth of Presidential Representation 21–26 (2009). And while the “anthropomorphization of the branches” is routine in constitutional theory, 18 David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 13 (2014). its single head makes the executive branch different. 19 The debate over a “unitary” executive is one instantiation of this more pervasive tension, and it is a disagreement itself illuminated by the two-bodies framework. Inconsistencies and confusions about the relationship between the president’s individual control over administration and the role of his personal rhetoric in the adjudication of presidential authority, for example, are discussed in section V.B. See also infra notes 413–422 and accompanying text (discussing the question of how the president binds the presidency). The nature of presidential power and the means of exercising it also are less delineated than the nature and means of exercising legislative or judicial power. 20 See Edward S. Corwin, The President: Office and Powers, 1787–1948: History and Analysis of Practice and Opinions 1 (3d ed. 1948) (“[W]hereas ‘legislative power’ and ‘judicial power’ today denote fairly definable functions of government as well as fairly constant methods for their discharge, ‘executive power’ is still indefinite as to function and retains, particularly when it is exercised by a single individual, much of its original plasticity as regards method.”). If a judge or senator tweets, we do not wonder whether she has issued a judicial opinion or enacted legislation. But the question whether the president’s tweets establish U.S. legal policy is unsettled and genuinely contested. 21 See, e.g., Jim Baker, Donald Trump, Twitter and Presidential Power to Interpret the Law for the Executive Branch, Lawfare (Aug. 24, 2018), https://www.lawfareblog.com/donald-trump-twitter-and-presidential-power-interpret-law-executive-branch [https://perma.cc/KLM3-LKC8]; see also Katherine Shaw, Speech, Intent, and the President, 104 Cornell L. Rev. 1337, 1384–85 (2019). If a judge or senator takes decision memos home, we are left with a judicial opinion resolving the case or a congressional record and the resulting legislation. But when individual presidents leave office with their records, they take with them an institutional precedent of the presidency. If a judge or senator suffers a stroke or other such disability, we do not require a constitutional amendment to continue the work of government. Yet the question of how to handle presidential inability poses profound constitutional uncertainty, culminating in (and not fully resolved by) the Twenty-Fifth Amendment. As these examples suggest, the President’s duality comprises a central paradox in the structure of American constitutional government—a paradox foreshadowed in the doctrine of the king’s two bodies.