Nathan Cortez & Lindsay F. Wiley
91 Geo. Wash. L. Rev. 617
This Article is the first to describe “hortatory mandates” and articulate principles for judicial review. Hortatory mandates are laws whose form and function collide. Either they speak in mandatory terms but lack penalties or enforcement mechanisms, or they speak in hortatory, precatory terms that belie the legal obligations they create. Our analysis of important examples—the Affordable Care Act, the Clean Air Act, federal dietary guidelines, and COVID-19 mitigation orders—indicates that policymakers regularly deploy hortatory mandates for instrumental reasons rather than purely symbolic or precatory reasons. In matters of public health, environmental protection, and beyond, so-called “soft law” is now a preferred tool of government. Hortatory mandates are not a quirk of legislative contortions to pass health reform or the exigencies of our current pandemic; they are probably here to stay.
This Article offers a framework for evaluating which hortatory mandates should be reviewable by courts and which ones are best left to the other branches. We argue that the essential inquiry for courts is whether a hortatory mandate establishes a binding, enforceable norm. This can be demonstrated by pointing to the government’s use of coercive means to enforce the norm or credible signals that the norm will in fact be enforced. After all, government actions that are binding and enforceable are not really hortatory; they are mandatory, regardless of language to the contrary. Likewise, government actions that create no binding legal obligations are merely hortatory and should not invoke the power of the courts—again, regardless of language to the contrary. In such cases, judicial determinations clarifying the hortatory nature of an order, and thus excluding it from review, may facilitate political checks and balances on any hortatory mandates that overreach. If the government is trying to regulate behavior on the sly, litigation can force the question early, fostering more robust political debate and—potentially—nonjudicial intervention to redirect the government’s approach. We also caution that abuse of hortatory mandates can degrade the rule of law and undermine public trust and compliance.
