Washington Law Review Online

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Presidents have tried to control agency behavior for decades. The rise of social media gave the President new and innovative tools for controlling agency behavior. As President Obama demonstrated during his time in office, social media became a platform through which the President could communicate to his constituents, align himself with agency actions he supported, and urge agencies to enact policies he favored. After he was elected in November of 2016, President Donald Trump continued his predecessor’s use of social media to engage with both agencies and the public. Different from his predecessor, however, President Trump and his presidential orders became the focus of a large number of lawsuits within the first year of his presidency. At the same time, President Trump’s use of social media—specifically Twitter— became a vehicle for issuing statements that operate like presidential orders. Tweets, like more traditional forms of presidential orders such as executive orders, may in some instances be challenged in federal court. Because of the likely increase in litigation over presidential orders, and, given the Trump Administration’s proliferation of orders triggering legal challenges, courts should recognize litigants’ ability to bring legal challenges to presidential orders that are tweets. Furthermore, courts should develop a framework for addressing what kinds of tweets can be challenged, and who can challenge them.

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