this post was submitted on 02 Jul 2024
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The rationale is that the powers aren't unchecked, but that the check for official constitutionally listed acts of the president is Congress, not the courts.
Article 48 gave the presidentisl office the power to unilaterally bypass the legislature.
This supreme Court ruling delineates the line between the individual and the office with regards to the judicial system, not the relationship between the office and the other branches like article 48 did.
Rather than granting new powers or preventing restraint of the executive branch, it purely limits the consequences the individual can face out of office.
The concept of presidential immunity existed prior to this case.
The ruling essentially listed three categories and their immunity status with regards to the courts. In my opinion, two of them are reasonable and the third shouldn't exist.
It's reasonable to me to say you cannot sue the president for vetoing a bill, or criminally prosecute the president for commanding the military. The constitution says the president can do those things, and that the check on presidential power is congressional acts including impeachment. The office of the president or the government as a whole may be prosecuted, and Congress and the courts can hammer out the exact meaning of the core powers, but the individual is only liable if Congress uses their power to assert that something was definitely not a valid presidential act.
It's reasonable to me to say that being the president doesn't grant you broad immunity for non-president things. The president does not have the constitutional authority to drink and drive, so if they do they're just a person subject to criminal prosecution.
It's unreasonable to me to say that in areas where the president acts officially, but their authority is shared with Congress or an inherent power of the office that they might not have immunity depending on how it impacts the role of the president.
It's weird to say it, but in this case I agree more with Coney Barrett that the more appropriate test is to see if the law applies to the official act and then determine if in this case it would interfere with a delineated core power.
https://www.scotusblog.com/2024/07/justices-rule-trump-has-some-immunity-from-prosecution/
I ultimately think that it would have been better to say that the president (individual) cannot be criminally prosecuted for exercising specifically enumerated constitutional powers unless Congress has impeached and removed from office and send it back to the lower court. They're perfectly capable of deciding if a particular act was an executive overreach or not on a case by case basis, and the fact that this has never happened before is a pretty solid argument against needing to worry about a "chilling effect" on the exercise of presidential power. The president should be chilled, it's practically in the constitution. Any power not given to the government is reserved to the people, clearly implying that the constitution should be read as stingy with power to the government, and generous with rights to the people. The president, as a member of the government, should be encouraged to worry about wandering around in legal grey areas.
Yea I dunno ... why not just have no immunity? It's not like the whole idea of the separation of powers is to ensure power is freely exercised ... it's the opposite.
If a president has to pause for a moment before doing something to ask their lawyer if it would be a crime ... maybe that's the point of having fucking legal system and constitution?
Sotomayer's dissent provided pretty good evidence (AFAICT) that the framers would have put criminal immunity into the constitution if they thought it wise ... because it was a known idea at the time that had been done by some states regarding their governors. They didn't. Cuz that's the whole point ... "no man is above the law".
And as for Congressional impeachment being paramount ... I'm not sure that's either necessary or even consistent with the Constitution (again, as Sotomayer's dissent addresses).
For example ... Article 1, section 3 (emphasis mine):
In short (AFAICT) ... impeachment and general legal liability are not the same thing ... and the latter totally still applies.
Beyond all of that, the general law probably achieves everything that the majority's decision was worried about (while they were conspicuously not worried about all of the other things that one should be when crowning a king). Civil immunity is a well established doctrine (government's just too big and complex a thing for civil responsibility to make sense). And while I don't know anything about it, there are similar-ish ideas around criminal responsibilities that just don't make sense for the very nature of a governmental responsibility, war, I think, being a classic example. Sotomayer again speaks about these things.
Overall, once you start to squint at it, the whole decision is kinda weird. To elevate the separation of powers to the point of creating literal lawlessness seems like plain "not seeing the forest for the trees".
The bit I wonder about, without knowing US Constitutional law/theory well at all ... is whether a democratic factor has any bearing. A criminal law is created by the legislature, a democratic body. And also caries requirements for judgment by jury. So couldn't an argument be made that the centrality of democratic power in the constitution cuts through any concerns about the separation of powers that the SCOTUS had, and enables democratically ordained law to quash concerns about whatever interference the judiciary (or legislature?) might exercise with the executive.
I know there's the whole "it's not a democracy, it's a republic" thing ... but the constitution dedicates so much text to establishing the mechanisms of democracy (including the means by which the constitution itself can be altered) that it seems ridiculous to conclude that democratic power is anything but central.
Those are all great points.
To be clear, I don't agree with the notion that the president requires immunity in order to be "undistracted" while being president.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can't do that thing is either unconstitutional, or doesn't apply to the president.
If they're impeached it wasn't a valid use of their powers and they are potentially personally criminally liable.
I feel like it's less traditional immunity and more an acknowledgement that the legislature can't criminalize things in the constitution, and someone can't be guilty of a crime under an unconstitutional law.
It's the not-enumerated official acts bit that's wonky to me.
I don't think anything that trump did would even remotely fit under an enumerated power of the president, which are pretty clearly and narrowly defined. Nowhere does the constitution empower the president to futz about with elections. If Congress delegated that power to the president, then the president is acting in the bounds of a law they can break.
You are effectively implying this, but I will say it explicitly - you don’t need immunity to reconcile the logical conflict. The courts can simply find that that law is unconstitutional facially (if it is specifically directed at an enumerated executive power) or as-applied (if it is a general law that sweeps in executive conduct that falls under an enumerated power). In other words, it’s not that the President is immune from criminal prosecution for violating a criminal statute, but instead Congress violated the separation of powers when passing the law and it therefore can’t be enforced because it is unconstitutional. In that situation, this would be a defense to the prosecution, with the burden being on the President to raise and prove the unconstitutionality of the law just like any other defendant. We don’t need to invent a new immunity to protect the President against Legislative excesses.
I'd agree that that would also be a valid way of accomplishing the same thing. Given the history of how we've handled things like civil immunity for the presidency before, it's at least consistent to call it an extension or clarification of existing practices, rather than something new.
Yeah, that’s fair - ‘new’ is probably not wholly accurate.