Daphna Renan: Presidential Power, National Security

Making the Case for Criminal Justice Reform

“I think criminal procedure is a very fundamental part of the constitutional law of democracy,” says Assistant Professor Daphna Renan, who writes about structural constitutional law, administrative law, and the Fourth Amendment. “When can the government use force against its own citizens? When can it search individuals, communities and communications? How do emergent technologies challenge existing legal frameworks? For anyone who cares about power and how law constrains and enables it, there are no more pressing questions than these.”

Making the Case for Criminal Justice Reform 6

Credit: Mark Ostow Daphna Renan says her experience in the Justice Department shaped her scholarship.

Renan, who joined the HLS faculty in 2015, is a public law scholar whose writing focuses on the American presidency and executive power. She teaches Criminal Procedure and Legislation and Regulation, and she co-teaches the law school’s Public Law Workshop.

In a 2016 Stanford Law Review article, “The Fourth Amendment as Administrative Governance,” Renan analyzed Fourth Amendment law, and how it needs to change to meaningfully regulate surveillance in the digital age. The traditional structure of Fourth Amendment law “is transactional,” she wrote. “It focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice.” Drawing on doctrinal and institutional tools from administrative law, Renan sought to re-imagine how the Fourth Amendment operates in this space.

Early in her career, Renan, a graduate of Yale Law School, served in the Justice Department, first as a counsel to the deputy attorney general and then as an attorney adviser in the Office of Legal Counsel, where her docket included national security and cybersecurity. “Seeing the poor fit between existing legal frameworks—in the Fourth Amendment context, for example—and many of the questions that executive branch lawyers confront day in, day out was part of what made me want to think about, write about, and teach in these areas,” says Renan.

In her writing, she has sought to bridge some of the divides in the fields of national security and domestic administrative law, “so that we don’t have a ‘national security president’ and an ‘administrative president,’ but rather one presidency shaped in fundamental ways by constitutional and political developments in the contexts of national security, surveillance, and administrative government,” she says.

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Renan has focused on Fourth Amendment law and how it needs to change to better regulate surveillance.


In much of her work, she seeks to understand law beyond the courts, looking at the institutions and practices that shape executive branch governance. Renan’s recent article, “Presidential Norms and Article II,” published in June in the Harvard Law Review, discussed norms that have developed over time to constrain the presidency, such as the norm of investigatory independence. “That norm helps to ensure that criminal law enforcement does not collapse into a tool for presidential self-dealing—as a tool to punish the president’s political opponents, for example—and also preserves a space for professional judgment in the exercise of prosecutorial power,” she says.

A central claim she made in this article is that the rise of presidential power cannot be separated from the emergence of presidential norms of limitation: “A president armed with nuclear capabilities, overseeing a sprawling criminal code and a sweeping domestic administrative establishment, came to be accepted in our constitutional culture at least in part because of norms of limitation that the presidency itself developed. The “fragility of such norms today only raises the stakes for understanding these features of the presidency.”


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