Presidents talk constantly: in formal addresses, at rallies, in interviews, and online. When a president's own words seem to contradict an executive order or the Justice Department's legal position, which should a court believe? The question became urgent with a president who prides himself on speaking off the cuff, and courts had surprisingly little law to guide them.
In this TalksOnLaw interview, Joel Cohen sits down with Professor Kate Shaw, a former lawyer in the Obama White House Counsel's Office who has studied how courts treat presidential speech. She walks through the cases, from Obamacare to the travel ban, and proposes principles for when a president's words should matter. Her companion interview, #TrumpTweets: Redefining Presidential Twitter, focuses on the legal questions raised by presidential use of social media.
The Missing Law of Executive Intent
Courts have long argued about legislative intent. Textualists, a school associated with Justice Antonin Scalia and, on the current Court, Justice Neil Gorsuch, look only to the words of a statute. Others consult committee reports and floor debates to resolve ambiguity. Shaw points out that there is almost no comparable body of law on executive intent. Presidents have issued executive orders throughout American history, and courts usually defer to them. Youngstown Sheet & Tube Co. v. Sawyer, which struck down President Truman's seizure of the steel mills during the Korean War, is the famous exception.
Why Formal Documents Should Usually Win
Executive orders and DOJ briefs typically come out of a careful process involving White House lawyers, the Justice Department, affected agencies, and subject-matter experts. Interviews and informal remarks do not. Shaw points to NFIB v. Sebelius, the first major Affordable Care Act case. Challengers made much of President Obama's televised statement that the individual mandate was "absolutely not a tax increase," and Justice Scalia pressed the Solicitor General on it at argument. The Court upheld the mandate as an exercise of the taxing power without mentioning the remark. Shaw considers that the right result: when casual presidential words conflict with the government's formal legal position, the formal position should control.
When Presidential Words Changed the Outcome
Shaw thinks a court went the other way in the challenge to DAPA, the Obama administration's program deferring deportation for parents of citizens and lawful permanent residents. The government described the program as guidance on enforcement priorities. Challengers pointed to President Obama's response to hecklers who called him "deporter in chief": "I just took action to change the law." The courts relied heavily on statements like that in holding that the program was a substantive change that required notice-and-comment rulemaking. Shaw sees this as an example of improper reliance.
The Travel Ban and Sanctuary Cities
Cases from the first months of President Trump's first term, when this conversation was recorded in 2017, put the issue front and center. In the travel ban litigation, challengers relied on campaign calls for a "Muslim ban." The Justice Department argued that nothing said before the inauguration counted, and that in immigration matters a facially legitimate reason ends the inquiry. Both district courts and the Fourth Circuit relied on the statements, while the Ninth Circuit ruled on statutory grounds. In the sanctuary cities case, a district court read the executive order as imposing new conditions on federal funds, partly because of tough talk from the President and the Attorney General, and struck it down. The Justice Department said the order only restated existing law. Shaw sees the sanctuary case as a question of interpretation where the formal DOJ position should have controlled.
The Exception for Discriminatory Intent
Shaw's key distinction is intent. In equal protection and religion cases, courts routinely look beneath facially neutral rules. Jim Crow literacy tests are one example. The animal-sacrifice ban aimed at Santeria in Church of the Lukumi Babalu Aye v. City of Hialeah is another. Shaw sees no reason to treat a president's motive differently from a legislature's, especially for an executive order, which comes from the President alone. She adds an important limit: courts should not comb through decades of a president's earlier life for damaging statements. What made the travel ban statements relevant was their close link, in subject and in time, to the order that followed. A genuine break, shown by both words and conduct, could leave earlier statements behind.
National Security and the Setting of the Speech
Presidential statements on foreign affairs and national security are usually vetted as carefully as the decisions themselves, so courts may fairly give them weight. Litigation over the targeting of Anwar al-Awlaki, the U.S.-born cleric killed in Yemen, is one example. The setting matters too. A State of the Union address or a statement in the Rose Garden deserves more weight than a cable-news interview, a rally speech, or a 4 a.m. tweet.
A Rule for Any President
Asked whether a president who says many bombastic or contradictory things might in effect be shielding himself, Shaw sees an advantage in a neutral rule. If courts generally rely on formal documents and DOJ positions, and look to presidential speech mainly for evidence of forbidden motive, the same principles apply whether the president is a former constitutional law professor or a former real estate developer. Presidents keep the freedom to speak in their own voice, and the legal and political spheres stay somewhat separate.
What to Know Now
The Supreme Court has since addressed the questions Shaw raised, and its answers were mixed. In Trump v. Hawaii (2018), the Court upheld the third version of the travel ban 5–4. It was willing to consider the President's statements, but it applied a deferential standard in the immigration and national security context and found the proclamation justified on its face. Justice Sotomayor's dissent argued that the statements showed the policy was driven by anti-Muslim animus. In Department of Homeland Security v. Regents of the University of California (2020), the Court set aside the rescission of DACA as inadequately explained. A plurality rejected an equal protection claim based on the President's statements about Latinos, calling them remote in time and made in unrelated contexts. That reasoning closely tracks Shaw's point that relevant statements must connect to the challenged action. In Department of Commerce v. New York (2019), the Court held that the stated reason for adding a citizenship question to the census was pretextual, a reminder that courts will look past an official rationale when the record shows it was not the real reason.
The other cases Shaw discussed also played out. DAPA never took effect. An equally divided Supreme Court left the injunction in place, and the program was rescinded in 2017. The Ninth Circuit largely upheld the ruling against the first sanctuary cities order, holding that the executive branch could not attach new conditions to federal funds without Congress, but narrowed the nationwide injunction. In Trump v. CASA (2025), the Supreme Court sharply limited universal injunctions against executive action. Challenges to executive orders on immigration, sanctuary jurisdictions, and federal funding have returned in the second term, and courts continue to face the question of how much the President's own words should count. In Trump v. Barbara (2026), the Court held 6–3 that the executive order restricting birthright citizenship was unlawful, with five Justices concluding that it violates the Citizenship Clause of the Fourteenth Amendment and Justice Kavanaugh concurring on statutory grounds. Some judges and scholars favor reading presidential statements to reveal an order's true purpose. Others, like Shaw in most contexts, prefer to rely on the government's formal legal positions.
