'SHEER FORCE OF TWEET': TESTING THE LIMITS OF EXECUTIVE POWER ON TWITTER.

Author:Bodnar, Kristina T.
 
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CONTENTS INTRODUCTION 1 A. What is Twitter? 3 B. The History of Presidential Tweets 4 I. "SO-CALLED" JUDGES: ATTACKING JUDICIAL LEGITIMACY 7 A. The Historic Relationship Between Executive and Judiciary Branches 8 B. Comparing Presidential Tweets to Past Critiques 10 II. TWEETING EXECUTIVE ORDERS: OFFICIAL BUSINESS IN 280 CHARACTERS OR LESS 12 A. The Formalities: The Basic Procedure for Issuing an Executive Order 13 B. Is a Tweet Enough? 14 III. "YOU'RE FIRED!" POLITICAL APPOINTMENT AND REMOVAL 15 A. The Legal Standards for Appointment and Removal 16 B. When Your Fate Is Written in a Tweet 18 IV. THREATENING WARFARE: TWEET US NOT INTO ENTERING ARMED CONFLICTS 19 A. The Historical Context for Threatening Armed Conflict 20 B. By Fire, By Ice, or By Tweet? 21 V. RESTRICTING EXECUTIVE LIBERTY: WEIGHING POLICY INTERESTS IN EVALUATING PRESIDENTIAL TWEETS 22 A. Policy Considerations 22 B. Policy Recommendations to Tame the Force of Tweet 26 CONCLUSION 30 INTRODUCTION

Each new presidency has brought with it a new use of the latest technology in American society. President James Monroe was the first president to ride on a steamboat on May 11, 1819. (3) President Martin Van Buren received the first presidential telegraph from Samuel Morse on February 21, 1838. President Bill Clinton was the first to have a White House Web site whereas President George W. Bush was the first to own an iPod. (5) While President Barack Obama was the first to tweet while in office, (6) President Donald Trump has contributed to this list of technological presidential firsts by regularly interacting with the public through his personal Twitter account (@realDonaldTrump) in addition to the official President of the United States account (@POTUS). (7)

President Trump's Twitter account exposes ambiguities in constitutional law because his posts test the power of the executive branch. This note will explore the unresolved issues of law raised by the President's electronically published official statements; examine whether current policies adequately provide guidance for presidents using Twitter to execute official directives; and explore policy reasons for regulating the President's issuance of orders through an informal, internet medium.

After briefly reviewing the nature of Twitter and presidential usage of the social media platform, I will begin examining, tweet-by-tweet, how President Trump has used Twitter to issue official directives and the potential for him to make further declarations through social media. First, I will discuss the effect of the President's tweets on judicial legitimacy and separation of powers. Second, I will examine Trump's announcement of an executive order by tweet concerning an impending transgender ban in the military. Third, I will review President Trump's exercise of removal power on Twitter by firing the Secretary of State. Fourth, I will explore a hypothetical area for exercising executive power on Twitter at which President Trump has hinted, but not yet exercised: entering armed conflicts. Finally, I will examine current policies regulating the President's use of Twitter and consider how to construct legislation to regulate such usage to safeguard against the limitations of Twitter and preserve the Framers' intent for executive power.

  1. What is Twitter?

    Twitter is a social media platform that has described itself as "a real-time information network powered by people all around the world that lets you share and discover what's happening now." (8) Twitter was first launched in July of 2006. (9) The mission of Twitter is to "[g]ive everyone the power to create and share ideas and information instantly, without barriers." (10) A "tweet" is a small burst of information posted by a user on Twitter, originally limited to 140 characters in length. (11) As of November 7, 2017, tweets can be as long as 280 characters in length. (12)

    When a person signs up to use Twitter, the person chooses a username of fewer than 15 characters designated as the handle. (13) The handle gives the Twitter user a unique URL for their profile, which is the webpage where the user's tweets are posted. (14) On each profile, there is a link that others can click on to follow a particular user's tweets. (15) At the time of this writing, President Trump tweets under his personal handle of @realDonaldTrump and has over 50 million followers. (16)

    If a second user reads a tweet that he or she likes, that user can choose to "like" the message, or share the tweet with others by retweeting. (17) The act of retweeting will allow another user's tweet to appear on the second user's profile, further spreading the influence of the initial post. (18)

  2. The History of Presidential Tweets

    Presidents have only been tweeting for a mere nine years, but the frequency and influence of these posts has increased dramatically during this time. Though Twitter was created in 2006, neither the White House nor the President had an account during George W. Bush's administration. (19) The White House Twitter account, @WhiteHouse, was the precursor to presidents having their own accounts and was started on May 1, 2009. (20) President Obama would occasionally tweet through the White House account, signing his personal tweets with his initials "-bo." (21) President Obama sometimes used the @BarackObama handle, but the account was run by his former campaign team, Organizing for Action. (22) President Obama did not post his own tweets until January of 2010, when he posted a tweet through the American Red Cross's Twitter account, @RedCross, making him the first tweeting president. (23)

    At the time, commentators remarked that the president would not likely be doing much tweeting in office, noting restrictions on White House aides' use of social media due to security concerns. (24) CNN Senior White House Correspondent Ed Henry posited that "the commander-in-chief is a little busy to be re-tweeting the latest cat video on YouTube." (25)

    The official presidential Twitter, @POTUS, was not created until 2015, with President Obama noting the long interval after the creation of the White House account: "Six years in, they're finally giving me my own account." (26) President Obama used the account to share photographs of his time in office, make remarks about political issues and special occasions, and issue congratulations to outstanding citizens, from NASA scientists to Olympic athletes. (27) He stopped short of issuing official executive orders or directives through social media.

    On January 20, 2017, Donald J. Trump took the oath of office and became President of the United States. (28) With this transition of power came the first ever transition of the official presidential Twitter account. (29) Tweets from President Obama's term were archived under a new account, @POTUS44, while the original @POTUS account was transferred to President Trump, a blank slate for the new President's tweets. President Trump also decided to maintain his personal Twitter account during his presidency, @realDonaldTrump. (30) The official presidential Twitter account no longer contains original posts, but it consists of posts retweeted from the President's personal account. (31) The retweeted posts tend to share similarities with President Obama's @POTUS tweets, covering holidays, national tragedies, and promoting policy. (32)

    Today, when the President tweets, his postings are considered official presidential statements. (33) All presidential tweets, including deleted ones, are saved by the National Archives and Records Administration. (34)

    Jeffrey Bellin describes Twitter as "a vast electronic present sense impression... generator, constantly churning out admissible out-of-court statements." (35) The Ninth Circuit has already taken note of the evidentiary value of presidential tweets, evaluating statements made by President Trump on Twitter during its consideration of the second iteration of the President's travel ban, which was implemented by executive order. (36) This was the first time that a higher court considered presidential tweets as official White House policy, setting new legal precedent for using Twitter to determine decision-making intent. (37)

    While the Ninth Circuit's mention of President Trump's Twitter was relegated to a footnote, (38) the D.C. District Court reiterated the President's tweet announcing a ban on transgender individuals from serving in the military in the first sentence of its opinion partially granting a preliminary injunction on the ban. (39) The opinion contained screenshots of the President's three consecutive tweets proclaiming the ban. (40) The D.C. District Court observed that the sequence of events leading up to a decision could shed light on the purpose of the decision, noting President Trump's abrupt Twitter announcement lacked the usual formality and deliberation accompanying major policy changes. (41) Since this opinion, other federal courts have followed in directly quoting President Trump's tweets in the main body of their opinions. (42)

    The Supreme Court first cited to Twitter more generally in Dietz v. Bouldin, expressing concern over discharged jurors seeing reactions to verdicts on the social media platform. (43) Most recently, President Trump's tweets have also been noted by the Justices of the nation's highest court. In Trump v. Hawai'i, (44) Chief Justice Roberts delivered the majority opinion, and referenced President Trump retweeting the links to three anti-Muslim propaganda videos in November 2017. (45) Chief Justice Roberts elaborated that while presidents often use speech to promote principles such as religious freedom, "the Federal Government and the Presidents who have carried its laws into effect have--from the Nation's earliest days--performed unevenly" (46) in upholding such lofty ideals. Justice Sotomayor addressed the President's tweets even more directly in her dissent, citing numerous instances when the President commented on...

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