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trump v us
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 Arrogant Supreme Court Is Now the Enemy Within
Americans know the Supreme Court’s anti-democratic agenda when they see it. Americans know a judicial power grab when they see it. Americans know a king when they see one. Tell me, America, do you like what you see?
Jul 05, 2024
Former President Richard Nixon used a ridiculous line to rationalize his misconduct: “If the President does it, that means it’s not illegal.”
On July 1, 2024, Nixon’s outrageous position became the law of the land.
But that is only the most recent illustration of how former President Donald Trump’s Supreme Court is remaking America. The justices comprising the court’s six-member conservative supermajority are foisting their personal vision for the country on citizens who largely disagree with that vision. Trump appointed three of them.
Trump asserts that, if reelected, he’ll be “dictator for a day.” The Supreme Court’s ruling makes him comparable to a king—a law unto himself—for an entire four-year term.
Two years ago, Dobbs v. Jackson Women’s Health Organizationwas a harbinger. The Court’s six conservatives overruled the landmark 50-year-old precedent, Roe v. Wade, and obliterated a woman’s right to abortion—a right that the vast majority of Americans across the political spectrum support.
Dobbs was only the beginning.
The Court Abandons Stare Decisis
The conservatives justices’ agenda requires violating the bedrock principle of stare decisis.
Justice Elena Kagan explained, “Adherence to precedent is ‘a foundation stone of the rule of law...’ Stare decisis ‘promotes the even-handed, predictable, and consistent development of legal principles.’ It enables people to order their lives in reliance on judicial decisions. And it ‘contributes to the actual and perceived integrity of the judicial process,’ by ensuring that those decisions are founded in the law, and not in the ‘personal preferences’ of judges.” [Citations omitted.]
Already at a historic low, the court’s perceived integrity continues to suffer self-inflicted wounds at the hands of its conservative members. They are imposing their personal preferences on the entire nation.
In the waning days of the court’s 2023-2024 term, some of the most draconian—and dangerous—emerged from the shadows.
The Court Guts the SEC and Imperils Other Federal Agencies
On June 27, 2024, the Court’s conservative block (Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas) issued SEC v. Jarkesy. The ruling bars the Security and Exchange Commission from adjudicating civil fraud actions itself before an administrative law judge. Instead, the SEC must now file all such actions in federal court where a defendant can request a jury trial, thereby crippling the agency’s enforcement capabilities.
On behalf of the court’s three dissenting liberals (Ketanji Brown Jackson, Kagan, and Sonia Sotomayor), Justice Sotomayor wrote, “Congress has enacted countless new statutes in the past 50 years that have empowered federal agencies to impose civil penalties for statutory violations… Similarly, there are, at the very least, more than two dozen agencies that can impose civil penalties in administrative proceedings… The constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.”
Justice Sotomayor added, “Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this court tells the American public and its coordinate branches that it knows best… Make no mistake: Today’s decision is a power grab.”
The Court Kills the Climate
Also on June 27, 2024, in Ohio v. EPA, five of the Court’s conservatives blocked the Environmental Protection Agency’s plan to protect “downwind” states from the air pollution that “upwind” states generated.
From 1981-1983, Justice Gorsuch’s mother, Anne, had led the EPA during the Reagan administration. Repeatedly, she clashed with environmentalists and congressional investigators challenging her management of the agency. In 1983, the White House forced her to resign.
In her 1986 memoir, Anne Gorsuch wrote that her rocky tenure and unceremonious departure distressed her son, Neil, who was 15 years old at the time:
“You should never have resigned,” he told her. “You didn’t do anything wrong. You only did what the president ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?”
Forty years later, Justice Neil Gorsuch wrote the majority opinion in Ohio v. EPA.
The Court “Grasps for Power”
The following day, on June 28, the conservative block struck again in Loper Bright Enterprises, v. Raimondo, overruling a 40-year-old precedent, Chevron v. National Resources Defense Council.
Back in 1984, conservatives had scored a big victory when a unanimous Supreme Court first issued the Chevron ruling. It required that courts defer to administrative agencies that filled in gaps or resolved ambiguities in Congress’ regulatory statutes.
At the time, business leaders cheered the decision because President Ronald Reagan’s EPA (under Anne Gorsuch) had loosened air pollution emission regulations. To preserve that loosening, the affected businesses wanted courts to respect the EPA’s scientific and technical expertise. The Court agreed, observing, “Judges are not experts in the field, and are not part of either political branch of the government.” The latter point meant that judges weren’t accountable to the electorate, whereas agency administrators served at the pleasure of an elected president.
But in the years that followed, businesses chafed at agency regulation. Along with the conservative legal movement, business leaders reversed course and attacked Chevron unsuccessfully—until Trump’s appointment of Barrett gave the conservatives a supermajority on the Supreme Court.
In dissent, Justice Kagan observed that Chevron “served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies… [It] has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Under Chevron, Justice Kagan added, the Supreme Court itself “has upheld an agency’s reasonable interpretation of a statute at least 70 times. Lower courts have applied the Chevron framework on thousands upon thousands of occasions... Chevron was cited in more than 18,000 federal-court decisions.” [Citations omitted.]
“A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Kagan concluded. “The majority disdains restraint, and grasps for power.”
The Court Helps Trump Avoid Accountability
The conservative block saved its worst for last—the court's July 1, 2024 ruling in Trump v. U.S. If democracy dies in America, Chief Justice Roberts’ opinion in the case will have been a key contributor.
“We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote on the final day of the court’s term. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
Writing for the three dissenting liberal members, Justice Sotomayor declared, “Today’s decision to grant former presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law… [O]ur Constitution does not shield a former president from answering for criminal and treasonous acts,…”
Trump asserts that, if reelected, he’ll be “dictator for a day.” The Supreme Court’s ruling makes him comparable to a king—a law unto himself—for an entire four-year term.
“I Know It When I See It”
In discussing a pornography case, Justice Potter Stewart once remarked, “I know it when I see it.”
Americans know the Supreme Court’s anti-democratic agenda when they see it.
Americans know a judicial power grab when they see it.
Americans know a king when they see one.
And as Americans come to understand the conservative Supreme Court justices’ profoundly negative impact on their daily lives, they won’t like what they see.
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