So how does some presidential conduct become part of the anticanon, or more to the present point, how might Americans today help ensure that the attack at Lafayette Square comes to join it? As it turns out, unlike the decisions of the Supreme Court, presidential precedent is less born than made—or unmade, as the anticanon shows. And there is more than one way to unmake it. Formal legal rejection, for example, is not required. President Roosevelt’s Japanese American exclusion order was welcomed at the time with broad popular support, congressional inaction, and indeed formal approval by the Supreme Court. Nearly 30 years passed before Congress enacted a law aimed at preventing the future military detention of Americans in similar circumstances, closer to 40 before the civil-rights activist Fred Korematsu personally saw his record cleared, and more than 70 before the Supreme Court formally repudiated its initial decision (in 2018). But whether measured by public officials’ and scholars’ negative references or by the generations of American schoolchildren assigned to read Farewell to Manzanar, race-based internment had clearly entered the executive-branch anticanon long before then.
Garrett Epps: Trump’s grotesque violation of the First Amendment
For the particular conduct to have resulted in punishment is also not necessary. The Nixon administration’s elaborate efforts to keep secret from Congress its air-bombing campaign in Cambodia—including falsifying military records—was the subject of intense constitutional criticism when it finally came to light. But the House Judiciary Committee tried and failed to include the air campaign among the articles of impeachment against Nixon. Instead, Congress enacted a new law, over the president’s veto, making clear that presidents were required to report to Congress all commitments of American forces abroad.
Just more than a decade later, the Reagan administration attempted a similar brand of foreign-policy concealment, trading arms for hostages and funneling funds to a military venture in Nicaragua. This time, the resulting scandal triggered investigations engaging the public and all three branches of government. The special counsel’s investigation produced more than a dozen criminal indictments; Congress eventually passed legislation that further expanded reporting requirements; and the otherwise popular president saw a record drop in public approval. Significantly, President Reagan didn’t cite Nixon’s Cambodia precedent in his defense. Instead, he announced the creation of his own investigating commission, and later apologized. The Nixon crew had been spared direct punishment for Cambodia. But the presidential practice of hiding foreign military ventures from Congress had become anticanonical nonetheless.
So what relegates something to the anticanon? The most significant factor is that multiple and diverse actors, in government and society, publicly object to the original deed. Congress could take disciplinary action in real time, but it more commonly enacts contrary legislation after the fact. Both parties come to favor nominees for executive-branch positions who condemn the practice—and Senate confirmation committees insist on it. As important, institutions responsible for professional training and public education, and leaders who shape popular discourse, support and reinforce official condemnation. Long before they find themselves in Cabinet positions seeking the advice of government counsel, government officials see the wrongness of the practice in the cultural landmarks that still define civic life for large majorities of Americans.