Stephen Miller claims that ICE officers have "immunity" for anything they do while enforcing immigration law. Even as an argument about *state* criminal prosecutions, that claim is overstated at best.
My expectation is that SCOTUS will, implicitly if not explicitly, weave together two dubious concepts, viz, the concept of a unitary executive and its concept of presidential immunity, to rule that the immunity SCOTUS recognized for the president’s official acts extends to federal officials—and most clearly and completely to federal law enforcement officers—when they are attempting to carry out the president’s orders, because their acts are—in effect—the acts of the president for whom they are merely agents. The Court will find that the agents are protected under the umbrella of presidential immunity if they reasonably believed that their actions could contribute to implementing a presidential order.
Call it the trickle down theory of presidential immunity: Because all executive power resides in the president alone, presidential immunity logically must extend and flow from the president down to his agents for the same or similar reasons that the president himself has immunity: “Appreciating the ‘unique risks’ that arise when the President’s [agents’] energies are diverted by proceedings that might render [them] … ‘unduly cautious in the discharge of … [their] official duties,’ the Court has recognized Presidential immunities and privileges [extend to federal agents and are] ‘rooted in the constitutional tradition of the separation of powers and supported by our history’.”
Because John Roberts is more clever than I am, I cannot insist that each link in SCOTUS’s chain of logic will be exactly the same as those I have suggested, but I would bet a 12-pack of good beer that Roberts will in some way weave together the unitary executive theory and the theory of presidential immunity (with some “separation of powers” and “deference” language slathered on to plaster over the gaps) to sculpt a novel concept of immunity for federal officials who carry out official orders for which the president himself would enjoy immunity. (Apologies for the quadruply mixed metaphor, but you get the idea.)
Roberts will claim this immunity is “nothing new.”
I cannot say it loudly enough or often enough: SCOTUS will not save us.
In our current post-constitutional situation, with Congress abdicating its role and the Judiciary so broken that legal arguments will not inspire SCOTUS to restrain Trump in any decisive way on any substantial issue, We The People are going to have to figure out the least destructive tactics to save ourselves and our republic from Trump’s abuses of power.
Roberts & this court will not be around forever. What goes around, comes around. & to mix metaphors, the arc of the moral universe is long, but it bends towards justice. MLK. Of course, that is not always true, but let us hope!
Whether "The executive Power" of Article II can be delegated/ extended to federal employees charged with statutory duties is a great future topic for Prof Vladeck.
Agree - mostly. The Federalist Society/Opus Dei/Trump-Roberts SCOTUS has clearly shown, often in unexplained and sometimes unsigned decisions that Donald Trump can do anything he wants. The only thing that will return the USA to its former and ORIGINAL status as a democratic republic is Emperor Trump’s many health issues stopping his heart.
And then we get Vance—who would probably be worse than Trump—if he can pull it off.
But Vance might not have the right character for the job of tyrant, although Trump will already have laid much of the groundwork for Vance to keep the Trumpist thing going.
After Trump is gone, I don’t know if Vance can hold the Trumpist cult together the way Trump himself has.
If The Dearest Donald drops dead, Vance and the Trump family would probably fight to decide who gets the throne.
Herman, I agree with your characterization of immunity as trickling down. But to see how it trickles down, we need to start at the top. The president isn't at the top. Immunity cannot be granted to protect a mere public servant. Immunity must be granted to support our Constitution and to protect primarily the people (because the people are sovereign).
The People are sovereign, and acting in our capacity as the supreme legislative authority in the U.S., "We the People" did "ordain and establish this Constitution for the United States of America" to "establish Justice" and "secure the Blessings of Liberty to ourselves."
Of course, Article VI established that "the supreme Law of the Land" encompasses only the U.S. "Constitution," federal "Laws" that were "made in Pursuance thereof" (of the Constitution) and "all Treaties." But that obviously isn't dispositive of whether federal judges can grant immunity to federal executive officials for conduct that is criminal under state (or federal) law.
Amendment X did (and was designed to) summarize our entire Constitution in a single sentence. We the People “by the Constitution” merely “delegated to the United States” certain limited “powers;” We “prohibited by it” (our Constitution) “to the States” certain “powers;” We “reserved to the States respectively” certain “powers;” and We “reserved” to “the people” all residual “powers.”
Article II emphasizes that the People "vested in a President" only particular parts of our own "executive Power," i.e., the duty to "take Care that the Laws be faithfully executed" and otherwise to "preserve, protect and defend" our "Constitution." Article IV emphasizes the duty of the U.S. government to secure "all Privileges and Immunities of Citizens" and "guarantee" a "Republican Form of Government." So the president can have immunity (at most) to the extent that We the People had immunity that we could grant to him to carry out the duties that we delegated to him.
We the People don't have immunity from federal criminal statutes or from state criminal statutes, so we cannot grant the president or other executive branch officials such immunity. Article III judges in whom the People vested only limited judicial power ("judicial Power shall extend" no further than permitted "under this Constitution, the Laws of the United States, and Treaties") have no power to purport to grant any immunity that We the People did not and do not have.
I think this discussion misses a key issue: the Doctrine of Lawful l Orders .There seems to be unanimous agreement that the US Military is immune when but only when it is following" lawful orders." When the National Guard is lawfully deployed, it still must follow lawful orders. It is very hard to claim that what went on in LA and was going on in Chicago entails adherence to lawful orders and several of the Illinois Guard have already announced that they will not participate with the ICE raiders because "this is not what we signed up for." And the ICE people have been treated as police normally are---subject to deference but hardly immune. There thus may be reason to wonder whether the Administration's "lawyers" have rejected Miller's babble and cautioned or flat out told the Rank and File that they are not immune and that is why the stay remains in place in Illinois and there was a sudden ---and unbelievable --announcement that the raid on San Francisco was called off because friends had asked that it be called off.
Thanks for the thoughtful reply! But the various doctrines relating to lawful orders aren’t really constitutional principles, and i don’t think it’s been tested in the context of the president giving an unlawful order for which he himself is constitutionally immune from criminal responsibility. And the concept of a unitary executive, which SCOTUS seems ready to adopt, does imply that the executive officials are not independent decisions-makers, but are mere appendages of the president. If SCOTUS holds the president can fire any executive official for refusing an unlawful order, then it’s a very small step to rule that those executive officials following an order for which the president cannot be held criminal liable cannot themselves be held criminal liable because they are really just “parts” of the unitary presidency.
A different rule might apply in the military context, when the military is enforcing its own Military Code of Justice—but I doubt it. If the presidency is a single unified thing—the unitary executive—then the immunity principles that apply to the president must logically apply to every action of that unitary executive, without regard to who is the appendage implementing those orders. Perhaps the military—and the Federal Reserve—are the only executive entities that are not part of the unitary executive.
As I said, I am not sure of the exact train of logic or illogic this SCOTUS will use to extend Trump’s presidential immunity to other executive officials who do his bidding, but I’m pretty sure SCOTUS will—for almost every practical purpose—find a way to grant immunity to all executive officials when they follow his unlawful orders. Of course, there will be theoretical exceptions to the grant of immunity, just as there are theoretical exceptions to SCOTUS’s grant of presidential immunity, but the theoretical exceptions in which immunity is disallowed will be insignificant as a practical matter.
I appreciate all the information you’ve given us. But I’m sickened by the absolutely disgraceful inhumane outcome of Anthony Boyd’s execution which took a full half hour.
FWIW, here’s a media report of how Boyd and his accomplices murdered their victim:
“They kidnapped Huguley at gunpoint, stopped to buy gasoline and went to a nearby baseball field, where the attackers made him lie down on a bench, prosecutors said. They then taped Boyd’s hands, feet and mouth before taping him to the bench, dousing him in gasoline, and lighting him on fire … The men then watched Huguley burn for 10 to 15 minutes until the flames went out ….” https://www.usatoday.com/story/news/nation/2025/10/23/alabama-execution-anthony-todd-boyd/86861744007/
No, & it was not. One loses consciousness w/i about 20 seconds in cases of nitrogen hypoxia. & does not feel suffocated b/c no carbon dioxide build up in the blood.
State-sanctioned killing is equally inhumane. To suggest that it would have only been inhumane to kill Boyd in the same manner he killed his victim, is disturbing. Two wrongs do not make a right.
Should Boyd’s execution have been done in a manner “equally inhumane” as the way he murdered his victims?
Equally inhumane?
No.
As I said, it would have been wrong to tie Boyd to a park bench, cover him with gasoline, set him on fire, watch him scream in agony for 15 minutes, and then leave him to die where children would find his body the next day—the way Boyd murdered his victim.
The way Boyd killed his victim was much, much more inhumane than the manner of Boyd’s execUtion.
The state should not execute murderers that way. But that’s not the “only” form of execution I would consider improper and inhumane.
We'll have to agree to disagree. I know what you said, and I disagree with the idea that the method of killing in this context (the intentional killing of a human being) has any bearing on its humanity.
I am still feeling puzzled over what sort of case could be brought against these federal officials. Is there any conduct, for example, in the Chicago apartment building raid that might allow prosecutions? The one with the zip tied children and people hauled out of their homes without warrants? What about in Oregon where they routinely use chemical agents in a residential neighborhood around the ICE facility there? Or when federal agents push peaceful protesters away from the facility desire the protestors standing where they have a legal right to be? Or sitting people in the face with a pepper bullet at close range?
THANK YOU for your thorough rebuttal of Miller’s absurd claim that federal officers possess “absolute immunity.” It’s infuriating how often I encounter morans repeating this canard.
Federal officers are protected only when their actions are authorized by federal law and when they have an objectively reasonable and well-founded belief that their conduct is necessary to carry out that law.
For example, a federal corrections officer may use force to prevent a prison inmate from escaping during a transfer. While such actions might constitute assault in other contexts, they are legally justified when the force used is reasonable to prevent an escape.
Similarly, if a demonstrator outside an ICE facility begins throwing stones at officers, those officers would be justified in taking reasonable measures to stop the threat. Moreover, if the incident occurs on federal property, federal law governs, and state law generally does not apply due to lack of jurisdiction.
However, this leaves a VERY wide range of circumstances where immunity does not apply. Consider the detention of an elementary school teacher escorting children to a bus, the tackling of a gardener tending begonias, or the pepper-spraying of a minister engaged in prayer.
These are likely criminal assaults, and possibly more serious offenses, for which federal officers should be prosecuted.
It’s deeply frustrating that local police often fail to intervene in such obvious criminal situations.
Instead, state and local officials are encouraging citizens to document ICE misconduct. Some states have even established formal mechanisms, such as the Illinois Accountability Commission and the New York Federal Action Reporting Form website, to systematically record federal abuses of power.
Personally, I believe local police should act immediately to de-escalate or halt violence initiated by ICE and arrest federal officers when appropriate.
I suspect officials like Governor Pritzker and New York Attorney General James have refrained from doing so out of concern that it could provoke violent confrontations between heavily armed federal and state forces. Such clashes would be dangerous and could give T another excuse to deploy federal troops under the guise of “restoring order.”
They may also be trying to avoid becoming a test case for the unresolved question in Wyoming v. Livingston, 443 F.3d 1211 (10th Cir. 2006): whether federal officers may egregiously violate state law in the name of enforcing federal policy.
We certainly want to avoid giving the current Supreme Court an opportunity to rule on that issue.
How does the "objective" standard set interact with the federal court requirement for active use of body cameras? I think that will be key. If federal agents do not have an active body camera in use, in violation of federal court orders, and the two parties differ wildly on the description of the events, will the lack of body camera footage be enough for a lawsuit to proceed and/or get before a jury?
Yes, easily. What the courts will struggle with is "Did an agent on patrol have a camera malfunction, or was it sabotage?" That's usually the problem. And, even if a tentative conclusion of "not sabotage" was reached, what does a court do with the conflicting accounts?
I did a quick Google search on authenticating body camera footage. One web site (1) says "... a chain of custody must be established. The authenticity of footage can be established through timestamps and metadata embedded in the video or testimony of the officer wearing the camera." Relying on the testimony of the officer wearing the camera is not a cryptographically secure means of authentication, and I personally believe that the Trump administration has lost whatever credibility it may have had. Timestamps and metadata may not do the trick either, unless there's some sort of cryptographically secure mechanism in play.
Another web site (2) seems to indicate that courts simply trust that the police will not provide fake videos.
In general, it's difficult to verify whether or not something was created by A.I. You say that in this context, it can be easily done. I'd be interested to know how.
Again, not the issue. If the video is so widely divergent from the other people's memories, then a forensic dive will be necessary and the officer will be in danger of perjury plus a bunch of other crimes for evidence tampering and the like.
The key issue for courts under Neagle will be how to handle incidents during which or before which all body cameras suddenly "malfunction". Sometimes, this is deliberate sabotage and courts will grapple with the quantum. And this is especially important in Chicago-area where all federal agents are under direct, on-point federal court orders to use body cameras in all interactions with the public.
It seems that the answer to my original question is: no, there's no secure way to authenticate body camera videos; but if ICE, et. al. tried to fake them, various legal processes would kick in, and that possibility will likely deter them from trying to fake camera footage.
I hope you're right. It might only take a video edit that makes it look like someone was reaching for an ICE officer's gun. Then again, maybe they don't want to bother with all that given that Stephen Miller has already promised federal agents full immunity.
miller is human excrement. He would deem it legal for ICE to go around and just shoot those they choose where they stand. He is a nazi, and nothing says hate, disgust and disdain for their fellow humans like a nazi.
On July 1, 2024, the Supreme Court ruled (in a 6–3 decision) that presidents have absolute immunity for acts committed as president within their core constitutional purview, at least presumptive immunity for official acts within the outer perimeter of their official responsibility, and no immunity for unofficial acts. My question is whether this decision by the six Supreme co-conspirators extends immunity (Supremacy Clause Immunity) to the actions of federal officers – ICE agents for example – who are acting in accordance with instructions from the Department of Justice and/or Department of Homeland Security that have been approved and authorized by the President. If the person giving the order is immune from prosecution, how can anyone carrying out that order also not be immune? I also direct attention to an interesting story “ Repression on a whim” in the Norway-based Barents Observer of October 23rd, written by a dissenting Russian journalist living in exile.He refers to the innovative lies or “mistakes” about him propagated in his Roskomnadzor file, including in his case the attribution of two additional citizenships to the one (Russian) he holds. Roskomnadzor is the Russian federal agency responsible for monitoring, controlling and censoring media and telecommunications. I wonder if DHS and ICE will be taking cues from this agency to produce new justifications for their attacks on US residents including citizens, green card and valid visa holders as well as undocumented immigrants. All part of the Putinization of the federal government and the White House. We may have “won” the Cold War but now we are doing our best to extract defeat from the jaws of victory.
Appreciate the insights as always, Professor. Do you think any of the (admittedly pretty outrageous) conduct by federal agents alleged/documented to date in this administration could realistically fall outside the scope of Supremacy Clause immunity? Not asking you to follow and weigh in on each and every seizure by ICE/CBP/etc., but my understanding of immunity as a general concept leads me to believe that all of these officers are immune from prosecution for effectively any seizure or detention. The only case I could think of that clearly falls outside the scope is the gentleman Scott Thomas Deiseroth who was arrested driving drunk in Florida, claimed to be an ICE agent, and asked whether one of the officers on the scene was a Hatian immigrant. Otherwise, all the recent violence by federal agents against citizens and non-citizens (at least what I've seen) cannot be prosecuted by state/local prosecutors.
Any law made against our Constitution is NULL and VOID! Common law is what the Constitution is based on. We have inalienable rights given to us by our Creator that no one should take away. They will be judged!
Romans 12:19
Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the LORD.
This issue--the power of states to prosecute federal employees who commit state crimes--may be one of the most important of this decade. It is reminiscent of the conflict between state and federal authorities over the abuses of federal power and even usurpations of powers (both in violation of our Constitution) in connection with the Sedition Act of 1798.
As SCOTUS addressed in New York Times Co. v. Sullivan in 1964 (https://www.oyez.org/cases/1963/39), the early constitutional controversy in 1798 "first crystallized a national awareness of the central meaning of the First Amendment." When it did so, it crystallized thinking about something even more central and far more profound: the true and crucial nature of the division and allocation of powers in our Constitution.
As Chief Justice John Jay and Justice James Wilson emphasized in 1793 in Chisholm v. Georgia, the primary and most important division of power in our Constitution is between the sovereign people and all our public servants. James Madison (and a unanimous SCOTUS in Sullivan) re-emphasized the same in connection with the Sedition Act of 1798.
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” individual “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
All “public men” are essentially “public property,” so “discussion cannot be denied and the right” and “duty” of “criticism must not be stifled.” “Criticism of" any "official conduct does not lose its constitutional protection merely because it is effective criticism” and “diminishes [officials'] official reputations.”
With the Sedition Act of 1798, a Federalist Party president and a Federalist-controlled Congress pretended to have the power to authorize federal criminal prosecutions of people whom (the government proved beyond a reasonable doubt) had asserted statements about Federalist officials that were both "false" and "malicious." Even worse, Federalist prosecutors and judges (including SCOTUS Justice Samuel Chase) knowingly and viciously violated the plain text of that statute, including by pretending they had the power to prosecute people essentially for any criticism of any Federalist official or any Federalist practice or policy (without proving anything other than that people publicized such criticism).
To check such unconstitutional usurpations of power by federal officials, states (especially Virginia and Kentucky led by James Madison and Thomas Jefferson) fought back. In his Report of 1800 regarding the Sedition Act of 1798 (https://founders.archives.gov/documents/Madison/01-17-02-0202), Madison publicly accused the foregoing Federalist officials of "reproachful inconsistency, and [even] criminal degeneracy." Madison emphasized that we must consider exercises of power by our public servants “with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.”
"[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable . . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
“The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.” In Britain, the legislature (Parliament) was and is sovereign and the people were and are mere subjects.
"In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not [only] by laws paramount to prerogative; but [even more strongly] by constitutions paramount to laws."
Even earlier, Madison in The Federalist No. 51 emphasized that powers were woven into our Constitution (aka "federalism" and "separation of powers") not to serve our public servants, but to ensure that all our public servants actually do serve the sovereign people. Moreover, such structural restraints were designed to supplement, not replace, our representatives' "dependence on the people."
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people [e.g., in elections or other manifestations of public opinion] is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of [ensuring] opposite and rival interests [by constitutional] distributions of power [has a profoundly important purpose:] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every [public servant] may be a sentinel over the public rights. . . . .
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [national and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive and judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."
In January 1788 in Federalist No. 46, Madison emphasized the reason for federalism, i.e., the division of jurisdictions or powers between state and federal governments. Madison emphasized that truth and decency require all public servants to bear in mind that the power of all public servants is subject to the sovereignty of the people.
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments [federal and state governments], not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments [state versus federal], whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
For good reason, the original Constitution was amended promptly to re-emphasize (in the Tenth Amendment) how powers were divided in our Constitution. The Tenth Amendment summarized our entire Constitution and emphasized that state and federal governments had only powers (not rights) and the power of each government was limited to its proper jurisdiction. We the People “by the Constitution” merely “delegated to the United States” certain limited “powers;” We “prohibited by it” (our Constitution) “to the States” certain “powers;” We “reserved to the States respectively” certain “powers;” and We “reserved” to “the people” all residual “powers.”
Your column led me to seek the origin of the phrase "run of the mine". It seems it results from a substitution of "mine" for "mill" in the phrase "run of the mill". The latter phrase originally referred to a batch of output from a lumber or textile mill, ungraded for quality (hence, presumably of varying quality, i.e. impliciitly in need of grading), but its meaning evolved, over time, to "of average/unremarkable/normal quality" [perhaps refleccting a reduction in the variation of quality owing to milling process improvements].
Professor Vladeck, thank you for these timely and valuable insights. The allusion to the concept of "necessary and proper" from the Necessary and Proper Clause of Article I and the Tenth Circuit's elaboration on that concept reminded me of the words of Justice Jackson (writing for the SCOTUS majority) when he addressed similar crucial generalities in West Virginia State Board of Education v. Barnette in 1943:
It is "our duty" (at least, of legislators, lawyers and judges, but actually all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of [our] century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights" to the "soil" of our country in our time.
"There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
The concept of immunity for public servants whose first, foremost and constant duty is to support our Constitution (for the purposes stated in the Preamble and to secure "all Privileges and Immunities of Citizens" and "guarantee to every State in this Union a Republican Form of Government") must be consistent with the foregoing.
I am a paid subscriber to EXIT Internationals ebook, The Peaceful Pill Handbook.
EXIT Intrn'l advocates for self-deliverance and has been recommending nitrogen hypoxia for the past 8 years. I personally experimented with it and when utilizing pure nitrogen it, loss of consciousness, is completely painless.
My guess is "they" are purposely using a blend of 20% carbon dioxide as a means of torture, as the presence of carbon dioxide causes feelings of suffocation.
My expectation is that SCOTUS will, implicitly if not explicitly, weave together two dubious concepts, viz, the concept of a unitary executive and its concept of presidential immunity, to rule that the immunity SCOTUS recognized for the president’s official acts extends to federal officials—and most clearly and completely to federal law enforcement officers—when they are attempting to carry out the president’s orders, because their acts are—in effect—the acts of the president for whom they are merely agents. The Court will find that the agents are protected under the umbrella of presidential immunity if they reasonably believed that their actions could contribute to implementing a presidential order.
Call it the trickle down theory of presidential immunity: Because all executive power resides in the president alone, presidential immunity logically must extend and flow from the president down to his agents for the same or similar reasons that the president himself has immunity: “Appreciating the ‘unique risks’ that arise when the President’s [agents’] energies are diverted by proceedings that might render [them] … ‘unduly cautious in the discharge of … [their] official duties,’ the Court has recognized Presidential immunities and privileges [extend to federal agents and are] ‘rooted in the constitutional tradition of the separation of powers and supported by our history’.”
Because John Roberts is more clever than I am, I cannot insist that each link in SCOTUS’s chain of logic will be exactly the same as those I have suggested, but I would bet a 12-pack of good beer that Roberts will in some way weave together the unitary executive theory and the theory of presidential immunity (with some “separation of powers” and “deference” language slathered on to plaster over the gaps) to sculpt a novel concept of immunity for federal officials who carry out official orders for which the president himself would enjoy immunity. (Apologies for the quadruply mixed metaphor, but you get the idea.)
Roberts will claim this immunity is “nothing new.”
I cannot say it loudly enough or often enough: SCOTUS will not save us.
In our current post-constitutional situation, with Congress abdicating its role and the Judiciary so broken that legal arguments will not inspire SCOTUS to restrain Trump in any decisive way on any substantial issue, We The People are going to have to figure out the least destructive tactics to save ourselves and our republic from Trump’s abuses of power.
Roberts & this court will not be around forever. What goes around, comes around. & to mix metaphors, the arc of the moral universe is long, but it bends towards justice. MLK. Of course, that is not always true, but let us hope!
You might be right, but I hope not.
Whether "The executive Power" of Article II can be delegated/ extended to federal employees charged with statutory duties is a great future topic for Prof Vladeck.
Agree - mostly. The Federalist Society/Opus Dei/Trump-Roberts SCOTUS has clearly shown, often in unexplained and sometimes unsigned decisions that Donald Trump can do anything he wants. The only thing that will return the USA to its former and ORIGINAL status as a democratic republic is Emperor Trump’s many health issues stopping his heart.
And then we get Vance—who would probably be worse than Trump—if he can pull it off.
But Vance might not have the right character for the job of tyrant, although Trump will already have laid much of the groundwork for Vance to keep the Trumpist thing going.
After Trump is gone, I don’t know if Vance can hold the Trumpist cult together the way Trump himself has.
If The Dearest Donald drops dead, Vance and the Trump family would probably fight to decide who gets the throne.
Herman, I agree with your characterization of immunity as trickling down. But to see how it trickles down, we need to start at the top. The president isn't at the top. Immunity cannot be granted to protect a mere public servant. Immunity must be granted to support our Constitution and to protect primarily the people (because the people are sovereign).
The People are sovereign, and acting in our capacity as the supreme legislative authority in the U.S., "We the People" did "ordain and establish this Constitution for the United States of America" to "establish Justice" and "secure the Blessings of Liberty to ourselves."
Of course, Article VI established that "the supreme Law of the Land" encompasses only the U.S. "Constitution," federal "Laws" that were "made in Pursuance thereof" (of the Constitution) and "all Treaties." But that obviously isn't dispositive of whether federal judges can grant immunity to federal executive officials for conduct that is criminal under state (or federal) law.
Amendment X did (and was designed to) summarize our entire Constitution in a single sentence. We the People “by the Constitution” merely “delegated to the United States” certain limited “powers;” We “prohibited by it” (our Constitution) “to the States” certain “powers;” We “reserved to the States respectively” certain “powers;” and We “reserved” to “the people” all residual “powers.”
Article II emphasizes that the People "vested in a President" only particular parts of our own "executive Power," i.e., the duty to "take Care that the Laws be faithfully executed" and otherwise to "preserve, protect and defend" our "Constitution." Article IV emphasizes the duty of the U.S. government to secure "all Privileges and Immunities of Citizens" and "guarantee" a "Republican Form of Government." So the president can have immunity (at most) to the extent that We the People had immunity that we could grant to him to carry out the duties that we delegated to him.
We the People don't have immunity from federal criminal statutes or from state criminal statutes, so we cannot grant the president or other executive branch officials such immunity. Article III judges in whom the People vested only limited judicial power ("judicial Power shall extend" no further than permitted "under this Constitution, the Laws of the United States, and Treaties") have no power to purport to grant any immunity that We the People did not and do not have.
I agree with your conclusion that the president has no immunity when he misuses or abuses the powers of his office to violate the law intentionally.
I think this discussion misses a key issue: the Doctrine of Lawful l Orders .There seems to be unanimous agreement that the US Military is immune when but only when it is following" lawful orders." When the National Guard is lawfully deployed, it still must follow lawful orders. It is very hard to claim that what went on in LA and was going on in Chicago entails adherence to lawful orders and several of the Illinois Guard have already announced that they will not participate with the ICE raiders because "this is not what we signed up for." And the ICE people have been treated as police normally are---subject to deference but hardly immune. There thus may be reason to wonder whether the Administration's "lawyers" have rejected Miller's babble and cautioned or flat out told the Rank and File that they are not immune and that is why the stay remains in place in Illinois and there was a sudden ---and unbelievable --announcement that the raid on San Francisco was called off because friends had asked that it be called off.
Thanks for the thoughtful reply! But the various doctrines relating to lawful orders aren’t really constitutional principles, and i don’t think it’s been tested in the context of the president giving an unlawful order for which he himself is constitutionally immune from criminal responsibility. And the concept of a unitary executive, which SCOTUS seems ready to adopt, does imply that the executive officials are not independent decisions-makers, but are mere appendages of the president. If SCOTUS holds the president can fire any executive official for refusing an unlawful order, then it’s a very small step to rule that those executive officials following an order for which the president cannot be held criminal liable cannot themselves be held criminal liable because they are really just “parts” of the unitary presidency.
A different rule might apply in the military context, when the military is enforcing its own Military Code of Justice—but I doubt it. If the presidency is a single unified thing—the unitary executive—then the immunity principles that apply to the president must logically apply to every action of that unitary executive, without regard to who is the appendage implementing those orders. Perhaps the military—and the Federal Reserve—are the only executive entities that are not part of the unitary executive.
As I said, I am not sure of the exact train of logic or illogic this SCOTUS will use to extend Trump’s presidential immunity to other executive officials who do his bidding, but I’m pretty sure SCOTUS will—for almost every practical purpose—find a way to grant immunity to all executive officials when they follow his unlawful orders. Of course, there will be theoretical exceptions to the grant of immunity, just as there are theoretical exceptions to SCOTUS’s grant of presidential immunity, but the theoretical exceptions in which immunity is disallowed will be insignificant as a practical matter.
Chief Justice Roberts wanted the president free to be bold. Under that doctrine, every federal employee can be equally bold. Ugh!
There’s still the reasonable belief and good faith issue. My guess is that this will still play some part.
I appreciate all the information you’ve given us. But I’m sickened by the absolutely disgraceful inhumane outcome of Anthony Boyd’s execution which took a full half hour.
FWIW, here’s a media report of how Boyd and his accomplices murdered their victim:
“They kidnapped Huguley at gunpoint, stopped to buy gasoline and went to a nearby baseball field, where the attackers made him lie down on a bench, prosecutors said. They then taped Boyd’s hands, feet and mouth before taping him to the bench, dousing him in gasoline, and lighting him on fire … The men then watched Huguley burn for 10 to 15 minutes until the flames went out ….” https://www.usatoday.com/story/news/nation/2025/10/23/alabama-execution-anthony-todd-boyd/86861744007/
So are you suggesting his execution should be equally inhumane?
No, & it was not. One loses consciousness w/i about 20 seconds in cases of nitrogen hypoxia. & does not feel suffocated b/c no carbon dioxide build up in the blood.
No, it would have been wrong to immolate Boyd.
State-sanctioned killing is equally inhumane. To suggest that it would have only been inhumane to kill Boyd in the same manner he killed his victim, is disturbing. Two wrongs do not make a right.
I answered the question that was asked.
Should Boyd’s execution have been done in a manner “equally inhumane” as the way he murdered his victims?
Equally inhumane?
No.
As I said, it would have been wrong to tie Boyd to a park bench, cover him with gasoline, set him on fire, watch him scream in agony for 15 minutes, and then leave him to die where children would find his body the next day—the way Boyd murdered his victim.
The way Boyd killed his victim was much, much more inhumane than the manner of Boyd’s execUtion.
The state should not execute murderers that way. But that’s not the “only” form of execution I would consider improper and inhumane.
We'll have to agree to disagree. I know what you said, and I disagree with the idea that the method of killing in this context (the intentional killing of a human being) has any bearing on its humanity.
This act unfortunately truly justifies if not in law the pain of this execution.
I am still feeling puzzled over what sort of case could be brought against these federal officials. Is there any conduct, for example, in the Chicago apartment building raid that might allow prosecutions? The one with the zip tied children and people hauled out of their homes without warrants? What about in Oregon where they routinely use chemical agents in a residential neighborhood around the ICE facility there? Or when federal agents push peaceful protesters away from the facility desire the protestors standing where they have a legal right to be? Or sitting people in the face with a pepper bullet at close range?
THANK YOU for your thorough rebuttal of Miller’s absurd claim that federal officers possess “absolute immunity.” It’s infuriating how often I encounter morans repeating this canard.
Federal officers are protected only when their actions are authorized by federal law and when they have an objectively reasonable and well-founded belief that their conduct is necessary to carry out that law.
For example, a federal corrections officer may use force to prevent a prison inmate from escaping during a transfer. While such actions might constitute assault in other contexts, they are legally justified when the force used is reasonable to prevent an escape.
Similarly, if a demonstrator outside an ICE facility begins throwing stones at officers, those officers would be justified in taking reasonable measures to stop the threat. Moreover, if the incident occurs on federal property, federal law governs, and state law generally does not apply due to lack of jurisdiction.
However, this leaves a VERY wide range of circumstances where immunity does not apply. Consider the detention of an elementary school teacher escorting children to a bus, the tackling of a gardener tending begonias, or the pepper-spraying of a minister engaged in prayer.
These are likely criminal assaults, and possibly more serious offenses, for which federal officers should be prosecuted.
It’s deeply frustrating that local police often fail to intervene in such obvious criminal situations.
Instead, state and local officials are encouraging citizens to document ICE misconduct. Some states have even established formal mechanisms, such as the Illinois Accountability Commission and the New York Federal Action Reporting Form website, to systematically record federal abuses of power.
Personally, I believe local police should act immediately to de-escalate or halt violence initiated by ICE and arrest federal officers when appropriate.
I suspect officials like Governor Pritzker and New York Attorney General James have refrained from doing so out of concern that it could provoke violent confrontations between heavily armed federal and state forces. Such clashes would be dangerous and could give T another excuse to deploy federal troops under the guise of “restoring order.”
They may also be trying to avoid becoming a test case for the unresolved question in Wyoming v. Livingston, 443 F.3d 1211 (10th Cir. 2006): whether federal officers may egregiously violate state law in the name of enforcing federal policy.
We certainly want to avoid giving the current Supreme Court an opportunity to rule on that issue.
How does the "objective" standard set interact with the federal court requirement for active use of body cameras? I think that will be key. If federal agents do not have an active body camera in use, in violation of federal court orders, and the two parties differ wildly on the description of the events, will the lack of body camera footage be enough for a lawsuit to proceed and/or get before a jury?
Is it possible for courts to verify that purported body camera videos are authentic and not generated by A.I.?
Yes, easily. What the courts will struggle with is "Did an agent on patrol have a camera malfunction, or was it sabotage?" That's usually the problem. And, even if a tentative conclusion of "not sabotage" was reached, what does a court do with the conflicting accounts?
I did a quick Google search on authenticating body camera footage. One web site (1) says "... a chain of custody must be established. The authenticity of footage can be established through timestamps and metadata embedded in the video or testimony of the officer wearing the camera." Relying on the testimony of the officer wearing the camera is not a cryptographically secure means of authentication, and I personally believe that the Trump administration has lost whatever credibility it may have had. Timestamps and metadata may not do the trick either, unless there's some sort of cryptographically secure mechanism in play.
Another web site (2) seems to indicate that courts simply trust that the police will not provide fake videos.
In general, it's difficult to verify whether or not something was created by A.I. You say that in this context, it can be easily done. I'd be interested to know how.
[1] https://aikenattorneys.com/body-cameras-police-misconduct-criminal-defense/
[2] https://www.blankingshipandkeith.com/news-insights/the-supreme-court-determines-the-admissibility-of-an-officers-body-worn-camera-footage
Again, not the issue. If the video is so widely divergent from the other people's memories, then a forensic dive will be necessary and the officer will be in danger of perjury plus a bunch of other crimes for evidence tampering and the like.
The key issue for courts under Neagle will be how to handle incidents during which or before which all body cameras suddenly "malfunction". Sometimes, this is deliberate sabotage and courts will grapple with the quantum. And this is especially important in Chicago-area where all federal agents are under direct, on-point federal court orders to use body cameras in all interactions with the public.
Thanks for the response.
It seems that the answer to my original question is: no, there's no secure way to authenticate body camera videos; but if ICE, et. al. tried to fake them, various legal processes would kick in, and that possibility will likely deter them from trying to fake camera footage.
I hope you're right. It might only take a video edit that makes it look like someone was reaching for an ICE officer's gun. Then again, maybe they don't want to bother with all that given that Stephen Miller has already promised federal agents full immunity.
miller is human excrement. He would deem it legal for ICE to go around and just shoot those they choose where they stand. He is a nazi, and nothing says hate, disgust and disdain for their fellow humans like a nazi.
On July 1, 2024, the Supreme Court ruled (in a 6–3 decision) that presidents have absolute immunity for acts committed as president within their core constitutional purview, at least presumptive immunity for official acts within the outer perimeter of their official responsibility, and no immunity for unofficial acts. My question is whether this decision by the six Supreme co-conspirators extends immunity (Supremacy Clause Immunity) to the actions of federal officers – ICE agents for example – who are acting in accordance with instructions from the Department of Justice and/or Department of Homeland Security that have been approved and authorized by the President. If the person giving the order is immune from prosecution, how can anyone carrying out that order also not be immune? I also direct attention to an interesting story “ Repression on a whim” in the Norway-based Barents Observer of October 23rd, written by a dissenting Russian journalist living in exile.He refers to the innovative lies or “mistakes” about him propagated in his Roskomnadzor file, including in his case the attribution of two additional citizenships to the one (Russian) he holds. Roskomnadzor is the Russian federal agency responsible for monitoring, controlling and censoring media and telecommunications. I wonder if DHS and ICE will be taking cues from this agency to produce new justifications for their attacks on US residents including citizens, green card and valid visa holders as well as undocumented immigrants. All part of the Putinization of the federal government and the White House. We may have “won” the Cold War but now we are doing our best to extract defeat from the jaws of victory.
Thanks for the facts.
Thanks ,again, for your enlightening insights!
Appreciate the insights as always, Professor. Do you think any of the (admittedly pretty outrageous) conduct by federal agents alleged/documented to date in this administration could realistically fall outside the scope of Supremacy Clause immunity? Not asking you to follow and weigh in on each and every seizure by ICE/CBP/etc., but my understanding of immunity as a general concept leads me to believe that all of these officers are immune from prosecution for effectively any seizure or detention. The only case I could think of that clearly falls outside the scope is the gentleman Scott Thomas Deiseroth who was arrested driving drunk in Florida, claimed to be an ICE agent, and asked whether one of the officers on the scene was a Hatian immigrant. Otherwise, all the recent violence by federal agents against citizens and non-citizens (at least what I've seen) cannot be prosecuted by state/local prosecutors.
America, bossed by limp chumps,
weeps as Liberty takes thumps:
Fools raiding coffers,
sold out to high offers,
Oh save us from the slavering Trumps
Any law made against our Constitution is NULL and VOID! Common law is what the Constitution is based on. We have inalienable rights given to us by our Creator that no one should take away. They will be judged!
Romans 12:19
Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the LORD.
This issue--the power of states to prosecute federal employees who commit state crimes--may be one of the most important of this decade. It is reminiscent of the conflict between state and federal authorities over the abuses of federal power and even usurpations of powers (both in violation of our Constitution) in connection with the Sedition Act of 1798.
As SCOTUS addressed in New York Times Co. v. Sullivan in 1964 (https://www.oyez.org/cases/1963/39), the early constitutional controversy in 1798 "first crystallized a national awareness of the central meaning of the First Amendment." When it did so, it crystallized thinking about something even more central and far more profound: the true and crucial nature of the division and allocation of powers in our Constitution.
As Chief Justice John Jay and Justice James Wilson emphasized in 1793 in Chisholm v. Georgia, the primary and most important division of power in our Constitution is between the sovereign people and all our public servants. James Madison (and a unanimous SCOTUS in Sullivan) re-emphasized the same in connection with the Sedition Act of 1798.
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” individual “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
All “public men” are essentially “public property,” so “discussion cannot be denied and the right” and “duty” of “criticism must not be stifled.” “Criticism of" any "official conduct does not lose its constitutional protection merely because it is effective criticism” and “diminishes [officials'] official reputations.”
With the Sedition Act of 1798, a Federalist Party president and a Federalist-controlled Congress pretended to have the power to authorize federal criminal prosecutions of people whom (the government proved beyond a reasonable doubt) had asserted statements about Federalist officials that were both "false" and "malicious." Even worse, Federalist prosecutors and judges (including SCOTUS Justice Samuel Chase) knowingly and viciously violated the plain text of that statute, including by pretending they had the power to prosecute people essentially for any criticism of any Federalist official or any Federalist practice or policy (without proving anything other than that people publicized such criticism).
To check such unconstitutional usurpations of power by federal officials, states (especially Virginia and Kentucky led by James Madison and Thomas Jefferson) fought back. In his Report of 1800 regarding the Sedition Act of 1798 (https://founders.archives.gov/documents/Madison/01-17-02-0202), Madison publicly accused the foregoing Federalist officials of "reproachful inconsistency, and [even] criminal degeneracy." Madison emphasized that we must consider exercises of power by our public servants “with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.”
"[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable . . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
“The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.” In Britain, the legislature (Parliament) was and is sovereign and the people were and are mere subjects.
"In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not [only] by laws paramount to prerogative; but [even more strongly] by constitutions paramount to laws."
Even earlier, Madison in The Federalist No. 51 emphasized that powers were woven into our Constitution (aka "federalism" and "separation of powers") not to serve our public servants, but to ensure that all our public servants actually do serve the sovereign people. Moreover, such structural restraints were designed to supplement, not replace, our representatives' "dependence on the people."
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people [e.g., in elections or other manifestations of public opinion] is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of [ensuring] opposite and rival interests [by constitutional] distributions of power [has a profoundly important purpose:] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every [public servant] may be a sentinel over the public rights. . . . .
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [national and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive and judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."
In January 1788 in Federalist No. 46, Madison emphasized the reason for federalism, i.e., the division of jurisdictions or powers between state and federal governments. Madison emphasized that truth and decency require all public servants to bear in mind that the power of all public servants is subject to the sovereignty of the people.
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments [federal and state governments], not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments [state versus federal], whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
For good reason, the original Constitution was amended promptly to re-emphasize (in the Tenth Amendment) how powers were divided in our Constitution. The Tenth Amendment summarized our entire Constitution and emphasized that state and federal governments had only powers (not rights) and the power of each government was limited to its proper jurisdiction. We the People “by the Constitution” merely “delegated to the United States” certain limited “powers;” We “prohibited by it” (our Constitution) “to the States” certain “powers;” We “reserved to the States respectively” certain “powers;” and We “reserved” to “the people” all residual “powers.”
Your column led me to seek the origin of the phrase "run of the mine". It seems it results from a substitution of "mine" for "mill" in the phrase "run of the mill". The latter phrase originally referred to a batch of output from a lumber or textile mill, ungraded for quality (hence, presumably of varying quality, i.e. impliciitly in need of grading), but its meaning evolved, over time, to "of average/unremarkable/normal quality" [perhaps refleccting a reduction in the variation of quality owing to milling process improvements].
Professor Vladeck, thank you for these timely and valuable insights. The allusion to the concept of "necessary and proper" from the Necessary and Proper Clause of Article I and the Tenth Circuit's elaboration on that concept reminded me of the words of Justice Jackson (writing for the SCOTUS majority) when he addressed similar crucial generalities in West Virginia State Board of Education v. Barnette in 1943:
It is "our duty" (at least, of legislators, lawyers and judges, but actually all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of [our] century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights" to the "soil" of our country in our time.
"There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
The concept of immunity for public servants whose first, foremost and constant duty is to support our Constitution (for the purposes stated in the Preamble and to secure "all Privileges and Immunities of Citizens" and "guarantee to every State in this Union a Republican Form of Government") must be consistent with the foregoing.
27.Oct.25 4:09 pm Mtn Time
I am a paid subscriber to EXIT Internationals ebook, The Peaceful Pill Handbook.
EXIT Intrn'l advocates for self-deliverance and has been recommending nitrogen hypoxia for the past 8 years. I personally experimented with it and when utilizing pure nitrogen it, loss of consciousness, is completely painless.
My guess is "they" are purposely using a blend of 20% carbon dioxide as a means of torture, as the presence of carbon dioxide causes feelings of suffocation.
Albuquerque, New Mexico