The Supreme Court’s recent decision in Trump v. United States has been the subject of considerable criticism. The Court’s ruling held that Presidents have absolute immunity (even after they leave office) for any unlawful acts they may have committed while exercising their core constitutional responsibilities, and presumptive immunity (which, given the Court’s description of the burden needed to overcome the presumption, seems pretty absolute as well) with respect to any other official actions that they take—regardless of how corrupt or evil a President’s intent may have been.
As even conservative commentators have acknowledged, Chief Justice John Roberts’s majority opinion is hard to square with the current Court’s professed commitment to an originalist methodology for interpreting the Constitution. No one disputes the reality that executive or presidential immunity is never mentioned in the Constitution’s text. One kind of immunity that is mentioned in Article I—for Congress members—is specifically limited to immunity while a member of Congress is in office, and while good arguments can be made that the spirit of Article I’s congressional immunity can plausibly be extended to other branches (in the same way that when the First Amendment says “Congress shall make no law . . . “ we protect free speech and religion from executive encroachments as well) the Court’s ruling in the Trump case is all about protecting former Presidents for allegedly criminal official acts.
As we move beyond constitutional text, we should emphasize that the Court’s opinion points to no significant historical discussion at the founding suggesting that anyone contemplated that Presidents would not be subject to any criminal liability after leaving office. The Impeachment Clause of Article I—which provides that the “Party convicted [by the Senate in an impeachment trial] shall nevertheless be liable and subject to Indictment, Trial and Punishment, according to law” seems to contemplate a legal reckoning for misdeeds once a President (or other officer) has left office. If this Clause was not understood to apply to former Presidents, you would think someone at the founding (especially anti-Federalists, opposed to federal power) would have mentioned that, instead of saying (as the Federalist papers do in various ways and at various points, including in Federalist #69) that, unlike kings, Presidents “would be amenable to personal punishment and disgrace.”
These criticisms are justified, yet even they don’t tell the whole story. This is actually not the first constitutional context in which the Court has ignored the original public meaning of the Constitution to compromise the rule of law by allowing government to escape accountability for violations of law under the rubric of an alleged “immunity.”
Consider the sorry saga of the Supreme Court’s Eleventh Amendment jurisprudence. The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The language of this Amendment is a bit turgid and technical. But the plain meaning, especially when the provision was enacted, was pretty clear: The citizens of one state cannot sue the government of another state in federal court simply on account of so-called diversity of citizenship, that is, the fact that the plaintiff and defendant come from different states. Read the Amendment again. Do you see anything in the text referring to “sovereign immunity” from all suits that states enjoy as a general matter? Or any impediment to a citizen suing his own state in federal court for state violations of federal law?
As a textual and historical matter, the answer to both questions is a resounding “No.” But the Court has interpreted the Eleventh Amendment’s meaning to blatantly ignore the constitutional text and answer “Yes” to each of these questions. For a while the Court did so based on the contention that founding history somehow supported the notion that the Eleventh Amendment was supposed to do much more than its words say – that the Amendment is rooted in the constitutional protection of state “sovereign immunity,” a principle that protects a state government from being sued without its consent for damages or any other kind of retroactive relief for the harm it has caused to anyone by violating their rights under federal law. Later, when the actual words and historical context of the Eleventh Amendment become too embarrassing for the Court to ignore, the Court abandoned any real pretext of textualism or original intent, and instead relied on vague notions of constitutional structure to continue to embrace state sovereign immunity. As the Court declared: “[T]he sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, . . . the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. . . .” Never mind that the Constitution completely relocated sovereignty away from the states to a national people. Never mind that the Preamble and the Supremacy Clause make that clear. The absence of any text of the Constitution preserving or even referring to state “sovereign immunity” is treated with the same casual concern for what the Constitution actually says that the Court demonstrated in Trump v. United States in its conclusions about presidential immunity in that case.
The key anomaly in both state “sovereign immunity” cases and presidential immunity cases is essentially the same. If private individuals or institutions violate the law in ways that cause harm to third parties, such individuals or institutions can be subject to civil liability and criminal sanction. We don’t ask the defendants whether they consent to being sued by victims or prosecuted by the government. But states and Presidents are above the law in this respect. A state must consent to be sued for the damages that its lawlessness causes, and a President acting in his official capacity is shielded from civil liability or criminal prosecution—no matter how culpable his intent was in taking the actions in question—for the same acts which would result in the liability and punishment for every other citizen.
What explains these disturbing decisions by Supreme Court Justices who claim to be committed to an originalist methodology for interpreting the Constitution, but ignore the text and history so blatantly when the President and state governments insist that they cannot be held accountable for lawless conduct?
To be sure, there is language in the Constitution that directs, in certain settings, that courts and other interpreters not be unduly limited by the Constitution’s narrow terms. Based on such language, at least in part, courts have expanded both the scope of national power and the range of fundamental rights the Constitution protects.
With regard to national power, the “necessary and proper” Clause, of Article I, Section 8, provides that Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States . . . .”
As far back as 1819 in McCulloch v. Maryland, the Court, recognizing that it was interpreting a constitution “intended to endure for ages to come, and consequently, to be adapted to the various crisis of human affairs,” held that it should review with considerable deference the determination of Congress as to what means were available to facilitate meaningful accomplishment of objectives entrusted to the federal government.
The case for moving beyond the rights specifically delineated in the Constitution’s text is even more explicit. The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
But there is no language in the Constitution that invites inventing state sovereign immunity or presidential immunities to add to the separation of powers—a phrase which itself is never mentioned in the Constitution—as the Court did in Trump v. United States.
To be sure, the Trump Court built upon a 1970s precedent in Nixon v. Fitzgerald, where the Court held that Presidents are absolutely immune from civil liability for official acts, essentially on the ground that the specter of personal civil liability might cow or chill vigorous discharge of presidential responsibilities. If the prospect of civil liability could chill, the Trump Court reasoned, the possibility of criminal sanctions could chill even more. Put aside that criminal misconduct is generally more serious than civil wrongs. The big point here is that Fitzgerald itself was made up by the Court, and building fabrications upon earlier fabrications seems unseemly for a Court that told us in Dobbs that history and tradition (which do not embrace absolute presidential immunity) are the key factors to consider when considering assertions of constitutional protections not grounded in constitutional text.
We acknowledge that some, narrower, kinds of presidential immunity might be considerably more tethered to the Constitution’s text and structure than what the Court held in Trump. For example, the Constitution’s Supremacy Clause (and the seminal McCulloch case) is a powerful reminder that states (the parts) should not be able to control the nation (the whole). So skepticism of state-law prosecution (given that state prosecutors and state judges are not politically insulated and may be beholden to localized political pressures) of past Presidents might be warranted. And even when it comes to federal criminal law, doctrinal devices designed to make sure that Congress thinks carefully and in nonpartisan ways before enacting provisions that apply to presidents (whose jobs do make them unique targets), may be fully justified. But to hold that all presidential actions—regardless of evil or corrupt intent—are immune from punishment opens the door to precisely the kind of parade of horribles the dissenting Justices in Trump catalogued.
The one possible silver lining in the Trump decision arises from the ruling’s vagueness and (at key points) internal inconsistencies. The all-important line between official conduct (which is immune) and unofficial conduct (which is not) is very ill-defined. For example, the Court said that discharge of the pardon power is a core presidential function that could never be made the basis of criminal liability, even as the Court implied that a President could be prosecuted (albeit under some bizarre evidentiary limitations) for bribery, which suggests that taking a bribe is unofficial. Yet the Court (rightly) defined bribery as the receipt or demand of money in “return for being influenced in the performance of [an official] act.” So taking money to give a pardon (which presumably is prosecutable) is illegal only because of the promise to confer a pardon, which is a promise only a President, exercising core presidential pardon powers, could ever make. So why is the bribery scheme—an essential ingredient of which is a promise to take an official act—“unofficial” and thus subject to punishment? Sooner or later, the Court will have to come back to its ruling in Trump and put a lot more meat on its rickety skeleton. And so there is hope that, with the passage of time and more opportunity for the Justices to reflect (remember the Trump case was briefed and decided on a tight timeline), the Court will refine and improve the Trump immunity framework (as it arguably refined the post-Bruen v. New York Second Amendment framework a few years later in last month’s United States v. Rahimi ruling).
