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Presidential Factfinding

Posted by on Tuesday, April 30, 2019 in Articles, Volume 72, Volume 72, Number 3.

Shalev Roisman | 72 Vand. L. Rev. 825 (2019) |


The modern President possesses enormous power. She can use military force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the “national interest,” perhaps that it will preserve “regional stability” or protect American lives. To impose sanctions, she might have to determine that a country has used chemical weapons against its own people. To remove an officer with for-cause protection, she must find that there was “cause,” such as “inefficiency, neglect of duty, or malfeasance.” Given that the President can only invoke these powers—and many, many others—when certain facts exist, the process and standard of certainty the President uses to find such facts can have enormous consequences. The phenomenon of presidential factfinding is thus both commonplace and important. It is also almost entirely unstudied.

This Article establishes the importance of factfinding as a pervasive feature of presidential power spanning constitutional, statutory, and international law. The Article then examines the President’s existing obligations in conducting factfinding, arguing that the President has a constitutional duty to act, at the least, honestly and based on reasonable inquiry. Finally, it addresses how presidential factfinding ought to be structured and regulated internally within the executive branch, by Congress, and through judicial review. 

Shalev Roisman