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executive power
The Supreme Court Immunity Ruling Has Supercharged the Imperial Presidency
The court’s decision in Trump v. U.S. will likely embolden presidents further in undertaking reckless foreign policy adventures.
Jul 19, 2024
Last week’s immunity decision by the U.S. Supreme Court will strengthen presidential power in multiple domains, including foreign policy. Given the already robust state of institutional power and autonomy the office has come to possess in recent years, this ruling’s new departure from existing limits is troubling.
By declaring that the president is immune from prosecution, the court goes beyond existing safeguards in criminal law. As Justice Ketanji Brown Jackson explains in her dissent, immunity in criminal cases is distinct from the other protections provided by law to a criminal defendant, such as presumption of innocence beyond a reasonable doubt, access to legal counsel, trial by jury, due process generally, and affirmative defenses. An affirmative defense allows, among other things, for defendants to say that even if the elements of a criminal offense can be shown by the facts, their conduct was nonetheless justified. The “public authority” defense, for example, suggests that an official should not be found guilty if acting on the basis of state (public) authority. That defense was already available to Trump, but the immunity shield is fundamentally different because, as Jackson explains, a president is now immune from all suits. There is no need for a trial court to assess what defenses might apply in a given criminal case because immunity prevents the case going forward at all. Such a barrier is obviously helpful to a president-as-defendant, but is it good for the republic? A closer look at the components of the decision reveals reasons to worry.
The new presidential criminal immunity compounds an already-existing construction of broad presidential authority in foreign affairs.
There are three parts to the new presidential immunity. First, actions taken under core constitutional powers are absolutely immune: for example, use of the pardon power or the appointment power stated explicitly in Article II. The reasoning here is that presidents cannot effectively do their job with a threat of prosecution looming, and therefore the principle of separation of powers requires that those core powers be unfettered, beyond the reach of criminal statutes. Second, official presidential acts are also immune up to the “outer perimeter” of a president’s official functions (that is, defining “official” very broadly). Thus, even if an action does not proceed directly from an expressly stated power, it will be protected by immunity even to the outer limit of what is reasonably considered official. Unofficial acts do not qualify for immunity under the court’s holding, but the realm of the unofficial has been narrowly circumscribed. And there is one more wrinkle. Even in prosecutions involving unofficial acts, evidence of motive may not be derived from presidential acts categorized as official. Here the majority opinion is most opaque—and in fact, one of the six majority justices (Amy Coney Barrett) declined to join the motive-related section of the opinion, leaving it at a bare majority of five.
The Trump v. U.S. decision is unprecedented in stating that a president is now immune from criminal prosecution as detailed above. But it is also unprecedented in the strictly legal sense. The majority concedes that the court had not ruled previously on the criminal immunity of presidents. It had, in a case involving Richard Nixon, found civil immunity from a suit for damages against a president. In fact, that case is where the term “outer perimeter” in reference to official acts originates. Whatever one thinks of the Nixon case, civil litigation is a far cry from the prosecution of an alleged felon on behalf of the public interest in safety (even if the alleged felon is or was a president). Transposing that civil immunity into a criminal context is a radical (and activist) step for a court to take. The majority concedes, once again, that constitutional history as well as caselaw precedent is lacking. So, it relies on arguments about the separation of powers to ground its ruling. However, although separation of powers is a universally acknowledged principle, there is no necessary link between that principle and its broadest possible application here. Multiple other resolutions would safeguard a separate sphere of action for the president; why choose the one that comes with the greatest risk to the equally important value of public accountability for criminal acts?
In addition to being unprecedented, the ruling was also unnecessary. The Supreme Court reviews and decides cases at its own discretion, taking about 70 each year from among the thousands of petitions it receives. There are no binding rules for which cases the court will hear, though federal rules provide discretionary guidelines. But if four of the nine justices signal a desire to hear a particular case, the court will do so. In this instance, the U.S. Court of Appeals for the D.C. Circuit ruled on the immunity question in an opinion that was well-reasoned and consonant with existing law, finding no basis for the claims of presidential immunity raised below. Had the Supreme Court declined review, that lower court decision would have stood as precedent only in the D.C. Circuit, not nationwide. The principles of judicial economy (using the decisional power sparingly) and incrementalism (ruling on narrow grounds rather than sweeping ones) would have counseled against wading into the troubled waters of the Trump case. Ironically, the majority justices noted that this case was not merely about Trump, but also about writing a “rule for the ages.” In other words, observers should not be so focused on Trump’s accountability for the January 6 violence but rather about the future contours of the presidency. And yet they authored a decision that does harm to both. Declining review would have been the far wiser course.
The new presidential criminal immunity compounds an already-existing construction of broad presidential authority in foreign affairs. Dating back at least to the 1936 decision in the Curtiss-Wright case, the court has recognized a distinction between domestic and foreign spheres of presidential action, allowing a president far wider latitude of discretion in the latter. Consistent with and extending this view, members of the court have recently urged a hands-off approach to evaluating presidential actions in foreign policy generally, citing a lack of institutional competency in that sphere. On the one hand, the latest decision continues a trend of broadening power and decreasing accountability of presidents; on the other, it will likely embolden presidents further in undertaking reckless foreign policy adventures. Examples abound of the consequences of aggressive use of executive power worldwide, for instance Rodrigo Duterte’s extrajudicial punishments in the Filipino anti-drug campaign, Vladimir Putin’s invasion of Ukraine, Benjamin Netanyahu’s authorization of attacks on civilians in Gaza, and Harry Truman’s use of the atomic bomb against Japan.
What can be done to restore any accountability to Trump and future presidents? Aside from amending the Constitution to strip immunity from the president or relying on presidents to police themselves—both unrealistic—government prosecutors will likely try to narrow the scope of the immunity created by the court. The litigation over Trump’s election-subversion is ongoing. Trial courts must now apply the rules created by the Supreme Court. For now, acts at the periphery of presidential functions are not absolutely immune, meaning that immunity in such instances can be overcome when the public interest so requires. This is a form of balancing whose outcome is far from certain, but it represents at least the possibility that the standard will evolve in a way that restricts immunity rather than preserving or expanding it. Second, the majority notes that even if evidence of motive is excluded from prosecution of unofficial criminal acts, publicly available motive evidence could be used. The murkiness of this part of the opinion represents an opening for developing the standard in a way more restrictive to defendants, both Trump and others.
The concept of executive immunity derives from the sovereign immunity claimed by English kings, resting on the premise that “the king can do no wrong.” As Justice Sonia Sotomayor notes in her strongly worded dissent, the majority decision threatens to put in place the very principle of monarchical supremacy that this nation rejected at its founding. This concern cuts across partisan lines, as any future president will take office with a new and expansive power standing ready for use.
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The Heritage Foundation Plan to Help Trump End Democracy in America
Last year, the right-wing think tank launched a new initiative—dubbed the “2025 Presidential Transition Project,” or “Project 2025” for short—to ensure that the next GOP President’s authority will be unchecked.
Jul 27, 2023
Donald Trump nearly destroyed American democracy in his first term in office. If he is reelected, he plans to try to finish the job. This isn’t a matter of speculation; it’s a virtual certainty.
In campaign speeches, TV interviews, posts on Truth Social, and a head-spinning list of promises posted on his official campaign website, Trump has vowed to pressure Congress to pass legislation imposing the death penalty on drug smugglers and human traffickers; purge “Marxists” from the Department of Education; remove civil service protections for federal employees; and “obliterate the deep state [and] rout the fake news media.” He has also pledged to fire Special Counsel Jack Smith, whom he has labeled “a deranged lunatic, [a] psycho, and a “crackhead,” and appoint “a real special prosecutor” to target President Joe Biden and his family, along with a litany of other real and imagined enemies.
It would be bad enough if such threats were simply the ravings of a wannabe dictator desperate to stay out of jail, but they are much more dangerous than that. Trump’s 2024 election bid and his vows of revenge and retribution are backed by a sophisticated and multi-faceted movement that seeks to expand presidential power to unprecedented heights should he or another like-minded GOP extremist win back the Oval Office.
The question for the rest of us, who see democracy teetering on the brink, is how to stop Trump and Project 2025.
The intellectual heart of the movement is the Heritage Foundation, the well-known and influential Washington-D.C.-based think tank, founded in 1973, that played an integral role in shaping the policies of President Ronald Reagan. From its early days as a pivotal player in the mainstream of the Republican Party, the Heritage Foundation went full MAGA during Trump’s first term. Last year, it launched a new initiative—dubbed the “2025 Presidential Transition Project,” or “Project 2025” for short—to ensure that the next GOP President’s authority will be unchecked.
The project’s webpage describes its vision in ambitious and unambiguous terms:
“The actions of liberal politicians in Washington have created a desperate need and unique opportunity for conservatives to start undoing the damage the Left has wrought and build a better country for all Americans in 2025.
‘It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on day one of the next conservative administration.”
The specific goals of the project are discussed in great detail in the ninth edition of the Heritage Foundation’s Mandate for Leadership. First published in 1981, the Mandate is designed to serve as a guide for conservative governance, and is updated periodically, usually at the outset of each presidential administration. The current version totals some 920 pages.
If you lack the stomach to plow through the entire tome, you can turn to a two-page preface written by Paul Dans, Project 2025’s director who served as the Trump Administration’s Chief of Staff for the Office of Personnel Management. Dans outlines the project’s four basic objectives, which he calls its “four pillars.” These are: the development of a broad “policy agenda” for the next right-wing President to implement; the construction of a “personnel database” to assist the President in making staffing decisions; the creation of a “Presidential Academy”to train the next set of high-level government appointees; and a “Playbook” for the first 180 days of the next administration.
One of the project’s more disturbing aims is to bring all federal agencies under direct presidential control, ending the operational independence not only of the Department of Justice and the FBI, but also the Federal Reserve, which oversees the banking industry and regulates interest rates; the Federal Communications Commission (FCC), which oversees television, radio, and the Internet; and the Federal Trade Commission (FTC), which enforces antitrust and consumer protection laws.
“What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought toldThe New York Times in an interview for a lengthy article published earlier this month on Trump’s plans for a second term. Vought ran the Office of Management and Budget for the Trump White House, and currently serves as the president of the Center for Renewing America, one of sixty-five ultra-right organizations that have come together to form Project 2025’s advisory board. (Others include the American Family Project, Hillsdale College, Liberty University, Susan B. Anthony Pro-life America, America First Legal, the Claremont Institute, Moms for Liberty, Freedom Works, the James Madison Institute, and ALEC.)
“The President’s plan should be to fundamentally reorient the federal government in a way that hasn’t been done since F.D.R.’s New Deal,” John McEntee, another former Trump White House staffer, also told The Times. “Our current executive branch,” McEntee continued, “was conceived of by liberals for the purpose of promulgating liberal policies. There is no way to make the existing structure function in a conservative manner. It’s not enough to get the personnel right. What’s necessary is a complete system overhaul.” McEntee joined Project 2025 in May as a senior advisor, working on the initiative’s “personnel” pillar.
Dismantling the New Deal-era regulatory framework of the administrative state, as McEntee advocates, has long been a goal of the radical right. The right has also long advocated a bloated view of presidential power known as the “unitary executive theory.” The doctrine was popularized in the early 1980s by Ed Meese, who served as counselor to the President in Reagan’s first term, and as attorney general in his second term, before assuming a full-time post with the Heritage Foundation in 1988. Bill Barr, Trump’s last Senate-confirmed Attorney General, is another prominent proponent of the theory.
In an oft-quoted 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles, California, described the theory as inimical to the core tenets of democracy, writing:
“[T]he theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight… Its proponents seek the cover of the Constitution, but in truth their theory wreaks havoc on the most fundamental principles of our constitutional traditions.”
In a recent column published online by MSNBC, New York University Professor Ruth Ben-Ghiat, an internationally renowned expert on fascism, compared the programmatic goals of the Trump campaign and Project 2025 to the crippling anti-democratic reforms implemented by Hungarian Prime Minister Viktor Orbán.
The question for the rest of us, who see democracy teetering on the brink, is how to stop Trump and Project 2025. It is possible, but unlikely, that Special Counsel Jack Smith could derail Trump’s campaign through the multiple prosecutions he is pursuing. It is also possible, but by no means certain, that the Supreme Court, currently stacked with three Trump appointees, could overturn or weaken some aspects of a second-term Trump agenda if Smith fails.
The most effective way to stop Trump and the new movement behind him, however, is to defeat him at the polls, making sure that he never accedes to power again. Sadly, that, too, remains decidedly uncertain.
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Why Congress Should Be Curtailing War Powers, Not Expanding Them
Our Constitution gives Congress, not the president, the constitutional power to declare war.
Apr 01, 2023
Last month, the House and Senate Armed Services committees held hearings to discuss the Department of Defense’s legislative asks and priorities regarding U.S. special operations forces. In those hearings, Department officials made clear that one of their top priorities for the upcoming legislative cycle is expanding an obscure security cooperation authority: section 1202 of the 2018 National Defense Authorization Act, which authorizes the U.S. military to work “by, with, and through” foreign partners to counter foreign adversaries like Russia and China.
In advocating for an expansion of section 1202, Department officials have reportedly promised that the authority would be “limited to noncombat operations.” Congress, however, should cast a wary eye on this promise and on the Department’s overarching request for broader authority.
Section 1202 is a provisional authority, in effect through 2025, that permits the Department of Defense to recruit, train, equip, and pay salaries to foreign militaries, paramilitaries, and even private individuals who are supporting U.S. “irregular warfare” operations — defined as “competition . . . short of traditional armed conflict” — against supposed malign state actors. By putting section 1202 partners on payroll, U.S. forces gain the ability to command them, directing them to achieve U.S. military objectives either alongside U.S. forces or in U.S. forces’ stead. As a result, the Department describes its relationship with section 1202 partners as one of “operational control,” and it refers to these partners as “surrogate forces.”
Surrogate forces can be a powerful tool: They are a force multiplier and can afford the Department of Defense access or credibility that American troops may not have in a foreign context. But working by, with, and through foreign partners carries serious risks, both of escalation and of unlawful combat.
In the past, security cooperation programs have pulled U.S. forces into combat with adversaries who are not clearly covered by any congressionally enacted authorization for use of military force (“AUMF”). This is especially true of surrogate force programs run under 10 U.S.C. § 127e, an established counterterrorism authority on which section 1202 is based. According to investigative reporting, the Department has used section 127e surrogate forces to pursue Boko Haram and various Islamic State affiliates in countries ranging from Cameroon to Egypt. Neither Boko Haram nor any Islamic State affiliate has been publicly disclosed as one of al-Qaeda’s “associated forces” or “successor forces” who can be targeted under the 2001 AUMF, per the executive branch’s interpretation of that authority. This raises questions about whether the Department has worked by, with, and through surrogates to target these or other organizations under yet‑undisclosed interpretations of the 2001 AUMF or the president’s constitutional authority — or worse, whether the Department has treated section 127e as a de facto AUMF.
Department of Defense officials have taken pains to distinguish section 1202 from its progenitor, section 127e. In a conversation in mid-2022, a current Department official assured me that section 1202 surrogate forces were not being commanded into combat like their section 127e peers. That same official, however, was unaware of any written Department policy that would prevent section 1202 programs from being used for combat. Other former and current Department officials with whom I spoke were similarly unaware of such a policy, and a public memorandum outlining the Department’s original procedures for implementing section 1202 contained no language prohibiting kinetic programs. (The memorandum was set to expire on August 3, 2022. The Department has not published a replacement policy, and the New York Times is now suing the Department under the Freedom of Information Act to obtain any such policy.) One current official with experience working on section 1202 programs said he would be “surprised” if the Department decided to promulgate a policy foreclosing combat because “you want to be flexible, in case you’re asked by [a lawmaker] or the president” to have surrogate forces undertake kinetic operations.
Nor are the weak limits in section 1202 itself — its definition of “irregular warfare” and its rules of construction — sufficient to prevent combat through surrogate forces. Although “irregular warfare” is defined as conduct “short of traditional armed conflict,” the Department of Defense views nontraditional or gray-zone conflict as encompassing “the full range of military and other capabilities,” including proxy and guerilla operations. As recently as last summer, a group of Department lawyers, writing in their personal capacity, assessed that the Department could run section 1202 programs in Ukraine to assist war efforts against Russia, so long as the United States did not itself “become embroiled in the ongoing conflict.”
The rules of construction similarly fail to guard against the use of section 1202 to engage in combat. Although one rule specifies that section 1202 is not itself an AUMF, it does not prevent the Department of Defense from using surrogate forces in furtherance of the president’s claimed authority to use force under Article II of the Constitution. The rule prohibiting the use of surrogates for operations that U.S. forces “are not . . . legally authorized to conduct themselves” suffers from the same defect, according to multiple Department of Defense officials with whom I have spoken. This is worrying because the Department of Justice’s Office of Legal Counsel (“OLC”) has interpreted Article II of the Constitution to allow the president to use force, without congressional authorization, whenever it is in the “national interest” and unlikely to produce a conflict of sufficient nature, scope, and duration to constitute “war in the constitutional sense.” Leading experts have criticized that OLC’s interpretation “provides no meaningful constraint” on the president’s authority to launch airstrikes or direct U.S. forces into low‑intensity combat. Indeed, recent presidents have relied on this interpretation of Article II to intervene in Muammar Gaddafi’s Libya and attack Bashar al-Assad’s military installations in Syria — without Congress’s prior approval.
If Department of Defense officials are telling Congress that section 1202 programs will not involve combat, they may be making a promise they cannot keep. Without real guardrails, mission creep or personnel turnover (including in the White House) could easily result in section 1202 surrogate forces being commanded into combat. There’s certainly an appetite to push the present boundaries: Just last week, a former Marine Corps official proposed using kinetic section 1202 programs to “target[] Chinese military assets” in the South China Sea.
To the extent that Congress wants to prevent section 1202 surrogate forces from being used like their section 127e counterparts, Congress needs to limit the authority, not expand it. Congress should add language to section 1202 that would prevent the authority from being used to implement expansive interpretations of the president’s authority to use force without congressional authorization. This could be a simple fix, accomplished by requiring section 1202 programs to support “ongoing and statutorily authorized” U.S. irregular warfare operations. Congress should also improve its capacity to oversee section 1202 programs, which are poorly understood by most members of the defense committees and largely concealed from members of the foreign affairs committees.
Our Constitution gives Congress, not the president, the constitutional power to declare war. It gives Congress the authority to create, fund, and regulate the military. As it stands, section 1202 is an overbroad authority that already risks degrading these constitutional prerogatives and removing decisions of war and peace from democratic debate and accountability. Contrary to the Department of Defense’s assertions and asks, expanding section 1202 would deepen these risks, widening the aperture for U.S. forces to engage in and direct combat in unauthorized, foreign wars.
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