The Supreme Court’s recent decision by Chief Justice Roberts is another originalist disaster, to be added to Chiafolo v. Washington and Trump v. Anderson. I plan several posts on the case, but let me start here by criticizing its lack of originalism.
I did an earlier post on why there is no presidential immunity under the Constitution, and the Court’s opinion did nothing to persuade me I was mistaken.
The Basic Points on the Original Meaning
1. The constitutional text does not provide presidential immunity but it does provide immunity for other entities, such as members of Congress. This strongly suggests that the President does not have immunity.
2. The Executive Power Vesting Clause could potentially confer immunity but upon analysis it does not do so. The constitutional enactors rejected monarchial immunities for the President. This is shown by statements at the time as well as the Impeachment Punishment Clause, which states that “Judgment in Cases of Impeachment shall not extend further than to removal from Office . . . but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
3. It is true, as Roberts states, that this Clause does not say explicitly that it applies to official actions rather than unofficial actions. But the context strongly suggests that it applies to official actions since it involves actions for which the President can be impeached. And when combined with the lack of a textual immunity, the inference seems irresistible.
4. Even the Court’s strongest originalist argument for a presidential immunity – that he enjoys immunity in the area of exclusive powers, such as the Pardon Power or the Appointments Power – is weak. There is a plausible argument that Congress lacks authority to regulate these powers. But that argument ultimately fails. It seems clear that Congress could make it a crime to take a bribe in exchange for a Pardon or an Appointment. This amounts to a regulation of the Pardon or Appointment Power. Thus, Congress can pass regulations in this area. Of course, Congress’s power might be significantly restricted – for example, perhaps Congress could not nullify a pardon procured through a bribe – but that just means the regulatory power is limited, not that there is an absolute immunity.
The Steel Seizure Case Citations
There are many other problems with the Court’s opinion from an originalist perspective. One particularly worth mentioning is that the Court repeatedly cites Justice Jackson’s concurrence in the Steel Seizure Case, even quoting the erroneous and outrageous line that there is a “poverty of really useful and unambiguous authority applicable to concrete problems of executive power.” I am tempted to echo Lady Margaret Thacher here, and to slam down a copy of Jackson’s concurrence on the table, saying “This is not what we believe!”
An Illegitimate Inference to the Existence of a Power or Immunity
Let me conclude with one last point that has not received much attention. Much of Roberts’s opinion takes the following form: the President needs this immunity because he otherwise would feel constrained from fully exercising his power. In other words, for the executive to have sufficient energy, he needs an immunity. This inference to the energy of the executive is a bad – a really bad – originalist argument. It is true that the constitutional enactors designed the Constitution to allow for an energetic executive. But they also designed the Constitution to allow for an executive who followed the law. The Constitution does not specify a tradeoff between these two values. Instead, the correct tradeoff between energy and lawfulness is a legislative judgment, not something that the Court can impose as a matter of constitutional interpretation. But that is what the Court did in Trump v. United States.
Rather, the Constitution allows that judgment to be made by the Congress. Under its Necessary and Proper authority, Congress could pass a law that would establish an immunity for the President based on its judgment as to the proper trade off between energy and lawfulness. In Trump v. United States, the Court usurped that legislative authority under the guise of constitutional interpretation.
Indeed, it is not even clear that the Court’s resolution of that tradeoff was even desirable. But that is beside the point. The decision is a legislative judgment for Congress to make, not one for the Court.
Posted at 8:00 AM