91. The Broader Article II Implications of the Trump Immunity Ruling

In providing as broad an endorsement of "preclusive" executive power as any we've seen from the Supreme Court, the majority opinion will have implications far beyond criminal prosecutions

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. 

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already): 

This week’s “Long Read” takes a deeper dive into Chief Justice Roberts’s majority opinion in Trump v. United States—less from the perspective of what it means for criminal prosecutions of former presidents than from the perspective of what it means for the separation of powers, generally. As I explain below, the Trump Court issued as broad an endorsement of “preclusive” executive power (power that can’t be constrained by the other branches) as any majority opinion the Court has ever handed down. That will have lots of (IMHO, deleterious) consequences even if the particular issue of prosecuting a former president never arises again.

But first, the news.

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On the Docket

The Court handed down four orders last week: a housekeeping order switching special masters in an original jurisdiction case; two denials of applications for stays (including one in an Alabama capital case); and, perhaps surprisingly, a grant of a stay of execution—over no public dissents—in Gutierrez v. Saenz. Gutierrez, a Texas death-row inmate, is seeking access to physical evidence in the state’s possession on the ground that he believes DNA testing of that evidence will prove that he wasn’t at the crime scene. Although the Supreme Court in Reed v. Goertz recently ruled in favor of a similar claim by another Texas death-row inmate, a Fifth Circuit panel ruled this February, by a 2-1 vote, that Reed could be distinguished because Gutierrez lacks standing to contest the constitutionality of the limitations on DNA testing imposed by Texas law. Tuesday’s order did not agree to take up the merits of Gutierrez’s appeal, but it pauses his execution for long enough for the justices to decide whether to do so—in yet another implicit rebuke of the Fifth Circuit. For those keeping score, this was the 14th time this term that the Court granted emergency relief; and the seventh of those 14 to come in a case that originated in Louisiana, Mississippi, or Texas.

Turning to this week, we expect the first of the Court’s three scheduled summer Order Lists later this morning—although most of it should be routine, housekeeping matters. We also are still waiting for the Court to rule on the pending emergency application from Alaska, South Carolina, and Texas, seeking to put back into effect a district court’s injunction against President Biden’s new student loan forgiveness program. The Eighth Circuit’s nationwide “administrative stay” of the program in a different case late Thursday may … complicate matters. And New York is expected to respond, by Wednesday, to Missouri’s outlandish effort to have the Supreme Court intervene in the New York criminal fraud prosecution of former President Trump. Missouri will likely file a reply, so that dispute may not become ripe for a decision from the Court until next week—longer if anyone plans to write anything.

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The One First “Long Read”: Preclusive Executive Power After Trump v. United States

My academic career began in the summer of 2005—in the heyday of the firestorm over the extreme constitutional arguments that were then being made by the Bush administration with respect to a seemingly limitless array of war powers. At its simplest, the argument was that the Constitution invested the President, as “Commander-in-Chief” of the military, with not just inherent authority to act during wartime, but preclusive authority to ignore statutory limits that Congress had otherwise imposed on his powers. This was the central argument, for instance, in the infamous “torture memos” prepared by the Justice Department’s Office of Legal Counsel (which argued that the anti-torture statute was unconstitutional insofar as it limited the President’s ability to subject enemy combatants to torture). It was one of the key arguments offered in defense of warrantless wiretapping conducted by the NSA (which otherwise certainly seemed to be in express violation of a statute purporting to provide the exclusive authority for certain types of surveillance). And other examples (as I documented in a 2007 law review article) abound.

The Supreme Court never expressly considered that argument in any of its war-on-terrorism cases from the 2000s. The closest it came was its 2006 ruling in Hamdan v. Rumsfeld (I was one of the lawyers on Team Hamdan), where, in footnote 23, Justice Stevens wrote that, “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”

Stevens’s citation to support that statement was to Justice (Robert) Jackson’s famous concurring opinion in the Steel Seizure case—which set out a three-part taxonomy for how courts should resolve interbranch separation-of-powers disputes, including those in which the President claims preclusive power to act in the face of a congressional constraint, where his power is, in Jackson’s words, “at its lowest ebb.” As Jackson explained, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

I was struck by that last passage (and by the Bush-era history recounted above) while re-reading Chief Justice Roberts’s majority opinion in Trump v. United States—which repeatedly cites to the surrounding discussion of preclusive power in Jackson’s concurrence, but none of Jackson’s cautions or concerns about reading that power expansively. To this point, most of the analysis of and commentary on the opinion has been focused on the immunity it establishes—and how that will/could cash out as applied to both former President Trump and current and future holders of the presidential office. But it seems to me that there’s a broader impact the majority opinion will almost certainly have—one that does not depend upon the hitherto unprecedented case of a former president facing criminal charges: How the ruling solidifies a remarkably broad view of the scope of preclusive executive power, without the “caution” for which Jackson’s Youngstown concurrence had argued.

Consider, in particular, how Chief Justice Roberts describes the President’s relationship with the Justice Department in holding that Trump was absolutely immune from those charges relating to his interactions with DOJ:

The allegations [relating to DOJ] plainly implicate Trump's “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” And the Attorney General, as head of the Justice Department, acts as the President's “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’”

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”

Note how broadly the majority extrapolates from some preclusive power with respect to control of the Executive Branch to broad preclusive power on all things related to “management of the executive branch.” This is a subtle—but huge—shift. Most scholars of executive power agree that there are at least some things Congress can’t do to the President. For example, Congress can’t make someone else “Commander-in-Chief” of the military (although Radical Republicans tried in 1867). Congress can’t wield the pardon power itself (or override a presidential pardon). And so on. But these examples are not disputed; everyone agrees that the President has these very specific powers, and so their preclusive-ness is not a matter of serious debate.

In contrast, the Court opening the door to such a broad, ill-defined preclusive power over all “management of the executive branch” could easily lead to two very different, but equally important, sets of implications:

First, there are an array of statutes already on the books that impose conditions on who may hold certain executive branch offices—and for how long. The Secretary of Defense, for instance, must be at least seven years removed from active-duty military service to be eligible for the position. The Solicitor General must be “learned in the law.” The FBI Director may serve for only 10 years. All of these statutes impose limits on the President’s putatively preclusive authority to manage the executive branch. Are they now unconstitutional? What about statutes that create protections from removal for those executive branch employees in civil service (as opposed to senior executive service) positions? Are those also now unconstitutional after and in light of the expansive reading of preclusive power adopted by the Court in Trump?

Second, on a larger (but also far-less-visible) scale, historically, there weren’t that many judicial decisions resolving interbranch disputes because most of those disputes were resolved informally—through negotiation, accommodation, and compromise. Instead of taking the executive branch to court (where it might lose), Congress would agree to drop some of its demands for information so long as the executive branch responded to others. And the executive branch, in turn, also wary of potentially generating a bad judicial precedent, would often agree to turn over documents or other materials, or even provide witnesses, that it believed were protected from disclosure by executive privilege, the work-product rule, or comparable concepts.

Now, though, the executive branch has a major thumb on its side of the scale—one that it can use both to exert further leverage over Congress in those backroom contexts and to defend against litigation should Congress (or private citizens) resort to it. Indeed, regardless of who the new President is on January 20, 2025, it’s hard to imagine that lawyers working for the new administration won’t regularly wrap themselves in the cloak of Chief Justice Roberts’s opinion—which gives them new fodder for resisting everything from subpoenas and FOIA requests to statutes purporting to limit the President’s power across a wide range of conduct.

It’s impossible to say, with any confidence, just how widespread the ramifications will be—but it’s just as impossible to conclude that there won’t be any. The Supreme Court’s ruling in Trump is as dramatic an endorsement of preclusive executive power as anything we’ve ever seen from the Court—and it will open the door, no matter who the President is, to more extravagant (and, in my view, alarming) claims of unconstrained (and un-constrainable) authority than the Founders could ever have possibly intended. Perhaps the Court in the future will find ways to limit these effects. The critical point for present purposes is that, until and unless that happens, the balance of power will shift further toward the executive—whether the incumbent is a Democrat or a Republican, and in contexts far removed from their (and their predecessors’) criminal liability.

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SCOTUS Trivia: Justice Jackson and Executive Power

I first encountered Justice (Robert) Jackson in college, where I came to know him as the lead U.S. prosecutor at the Nuremberg war crimes tribunal (my undergraduate thesis was on the war crimes trials after the First World War—especially their disappearance from the history books and the significance of both those failed efforts and their historical erasure). He struck me then as something of an enigma, and 25 years later, he still does. He was a staunch defender of executive power, but also of a robust judicial role in constraining it—at least once the courts’ authority was properly invoked. And I continue to wonder, as his biographers always have, just how much his experience trying to hold the Nazis to account shaped his views of more domestic matters.

The one thing that can’t be denied about Jackson, though, was that he could write. (Justice Byron White once told a clerk that “you write beautifully,” and then, after a pause, added that “Justice Jackson had the same problem.”) And the discussion of his oft-discussed (but seldom understood) Youngstown concurrence gives me a chance to close with how he closed his opinion in that case:

The essence of our free Government is “leave to live by no man’s leave, underneath the law”—to be governed by those impersonal forces which we call law. . . . With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

That first quote is from Rudyard Kipling’s The Old Issue—a poem Jackson also quoted from in his opening address at Nuremberg. However belatedly, he, at least, seemed to understand the risks of giving a single executive too much unreviewable power.

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