immunity

---

Yesterday, July 1, 2024, Representative Joe Morelle (D-NY), announced that “I will introduce a constitutional amendment to reverse SCOTUS’ harmful decision and ensure that no president is above the law. This amendment will do what SCOTUS failed to do—prioritize our democracy.” His is the only legal and accurate response I’ve seen to the 6-3 decision in Trump v. United States (23-939). Once the Supreme Court rules on an issue, the only ways in which the decision can be changed is either for a subsequent court to overturn the decision, which can take decades or for Congress to introduce and ratify a Constitutional Amendment correcting the issue. Passing a normal law, even by a two-thirds majority, does not suffice. The Supreme Court, at least in theory, deals with determining what is constitutional. Therefore, only an amendment to the constitution overturns their decision.

I want to be thorough in examining where we are as a nation and how we proceed. There are a lot of pundits making remarks in one direction or the other, but at the end of the day, there are few options for the people of the United States to consider. This decision, without question, puts the US at a crossroads that will potentially define our direction for decades. What we do next, both collectively and individually, makes all the difference in the world. There is no backing away and hoping you’re not affected by what happens next. Anyone who lives past the November election is going to be impacted by this decision.

First, let’s look at exactly what the court’s decision says:

We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” 601 U. S. _ (2024).
II
This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the
issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634 (1952) (Jackson, J., concurring).
The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id., at 28–30, 36–37, 124.
They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, Fitzgerald, 457 U. S., at 756, he must be absolutely immune from criminal prosecution for such acts. Brief for Petitioner 10. And Trump argues that the bulk of the indictment’s allegations involve conduct in his official capacity as President. See Tr. of Oral Arg. 30–32. Although the Government agrees that some official actions are included in the indictment’s allegations, see id., at125, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized. See Brief for United States 9.
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

Let’s start by taking a look at the precedents considered. Youngstown Sheet & Tube CO. v. Sawer was a 1952 case that, unless you’ve really studied presidential powers, probably has escaped your knowledge until now. Quoting from the Syllabus of that decision:

To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.

The President, in this case, was Harry S. Truman. The decision was handed down on June 2, 1952: The President cannot take possession of private property without authorization from Congress or the Constitution. The portion quoted comes from Justice Robert Houghwout Jackson. The entire quote reads:

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But, as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies — such as wages or stabilization — and lose sight of enduring consequences upon the balanced power structure of our Republic.

Justice Jackson was not a graduate of any Ivy League law school. He took a two-year law course at Albany Law School in one year and was admitted to the New York Bar in 1913 at the age of 21. A strong First Amendment advocate, Jackson wrote the majority opinion in West Virginia State Board of Education v. Barnette (1943) in which the Court ruled that a school could not compel a student to salute the U.S. flag and recite the Pledge of Allegiance. In that matter, Jackson wrote for the majority:  “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.”

Jackson would likely bristle to find his words mixed in with this decision. He was a staunch advocate of liberty within the law and did not believe that the Constitution gave blanket immunity under any circumstances. He stated that the Constitution “must not be discredited by an interpretation to mean liberty without law. Nothing can do the cause of liberal government more harm . . . than to give . . . the impression that our Bill of Rights is useful only to our enemies or is a mere refuge for criminals.” He would have almost certainly applied that same sentiment to yesterday’s ruling. There can be NO liberty without the law. Therefore, absolute immunity, for anyone, cannot exist.

The second precedent referenced in the opinion, Fitzgerald, 457 U. S., at 756, is what the court uses to defend its ability to decide matters of immunity. The situation at hand was that Fitzgerald was dismissed from his Civil Service job in January 1970. He claimed that his firing was retaliation for having testified before Congress. When the Civil Service Commission disagreed, he filed suit, initially against the Defense Department. The case made its way to the Supreme Court when President Nixon was later attached to the case, in which he claimed immunity. A lower court had decided that the President was not entitled to claim absolute immunity. SCOTUS decided, however, that “The President has absolute immunity from liability for civil damages arising from any official action taken while in office.”

Here’s the catch: Immunity appears in no form in the Constitution itself nor any portion of the US Code. Nowhere. The concept didn’t even begin to appear until 1867 in Mississippi v. Johnson in which the Court determined that it could not intervene in how the President exercised his “purely executive and political powers.” In effect, the Court determined that it had no jurisdiction over the official affairs of a sitting President. For decades since that decision, the Court has reiterated that Johnson does not stand for the proposition that the President is immune from judicial process. In fact, as part of the lead-up to the Watergate hearings, the Court insisted that the President was amenable to a subpoena to produce evidence for use in a federal criminal case. Nixon had argued hard that he was immune because the nature of the Executive Branch protected him from participating in an ongoing criminal investigation. The Court figuratively laughed in his face.

Yet, building off the concept that a President has absolute immunity from liability for civil damages, the Roberts Court has taken off into unforeseen and uncharted waters in determining that the President is not only immune from civil charges but criminal charges as well. This represents a huge presumption on the part of the Court that, in reality, has no basis in precedent nor in any way legitimacy found in the Constitution. What has happened is that the Court has used unrelated precedent to concoct a false justification for a politically-motivated decision.

Among the founders of the United States, whose words are appropriate to the upcoming celebration of our Independence from the tyranny of King George III, John Jay most famously said, “Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.” I doubt that he could have anticipated a situation such as what we currently face, but I also doubt that his opinion would be changed. No one is above the law and upon that principle, the United States has uncompromisingly existed, establishing itself as a leader among the Democracies of the world.

Going beyond the founders, President Theodore Roosevelt stated: “No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” I find the latter part of that quote most interesting as it is seldom included. No one gets to choose whether or not they are subject to the law. There’s no question as to who is or who isn’t. Everyone is held equal under the law whether they like it or not.

Even conservative libertarian author James Bovard has said, “This is a case if the President is permitted to be above the law, then we no longer have a republic.” I’ve not seen any direct response from Bovard on this particular issue, but unless he’s willing to eat his own words, there’s no way that he can agree with the Court’s decision in this case.

It seems without question that the 6-3 decision is a travesty of justice, a ruling based not on the Constitution but on the political desires of an unabashedly partisan collection of justices. Exactly what the dangers of this decision might be is a topic I will save for a later missive. What matters at the moment is that this ruling has the effect of law and holds serious consequences not only for the nation but for our ability to lead and interact with the rest of the world.

Therefore, what is appropriate at this juncture is to consider what course(s) of action might be used to overturn what should be considered an unconstitutional action on the part of the court. Certainly, the precedents quoted in the decision are significantly irrelevant and without basis. Therefore, it is the responsibility of the people of the United States to utilize their elective force in rendering this decision moot.

Without question, Rep. Morelle’s intention to introduce a Constitutional Amendment is the correct way to address any mishandling of the Constitution itself. However, time becomes a factor as we consider the possibility that, should the Orange Felon be elected to office, the use of this decision in significantly delaying or defeating any Amendment directly affecting the immunity now prescribed to the office of President could be significant. Consider the steps necessary to ratify a Constitutional Amendment.

First, keep in mind how the process is described the the Office of the Federal Register: The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

Here’s what’s interesting, though: the President plays no active part in the amendment process. The Constitution skips over the Executive Branch completely. Congress must pass a joint resolution by a 2/3 majority, but the resolution never goes to the White House and cannot be vetoed by the Executive. Instead, the Article goes directly to the Office of the Federal Register who adds the necessary context, and puts the resolution in slip law format.

The Archivist then submits the proposed amendment to the states by sending a letter to each Governor. The Governors then formally submit the proposed amendment to their state legislatures. The legislatures may then vote on the proposed amendment for themselves or subject ratification to a public vote among citizens of that state. 38 of the 50 states must ratify an amendment for it to become law. When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to Congress and to the Nation that the amendment process has been completed. The decision of the Archivist is final and not subject to any further action.

How long can this take? Anywhere from a matter of months to several years, depending on the attitude of the states as to whether the proposed amendment is a matter of national urgency. The last amendment ratified was the 27th in 1992 regarding pay increases for members of Congress. The proposed 28th amendment, which would give states sole discretion in determining gun rights, and the 29th amendment, known as the Equal Rights Amendment, both failed to be ratified by the states, demonstrating the difficulty in passing a Constitutional Amendment in the current political environment.

The fact that such power derived from the individual states undoubtedly seemed logical when there were only 13 of them to be considered and they all fell along the Atlantic coastline. When the Constitution was written, there was still a considerable question as to whether they even wanted to be a unified nation or govern themselves individually. In modern terms, however, waiting for a response from the states creates a prohibitive measure that is likely to be overcome only in the most dire and urgent of cases. Given that the matter of presidential immunity is, at this point, limited to a handful of cases that have little impact on the public at large, few state legislatures are likely to see the benefit of ratifying such an amendment.

That’s assuming that Morelle and other House Democrats can even get a proposed amendment through Congress. With power in the House belonging to Republicans, it is extremely unlikely that a proposed amendment could even get a reading prior to the November election.

This leaves one primary means of dissent: the vote. Ultimately, those governed must consent to any changes in the law by continuing to elect those who would uphold such law. To overturn unjust decisions such as this appears to be, we must first dissent by unseating those in power most firmly and substantially. That means creating a strong and cohesive supermajority among Democrats with a firm and resolute message that we expect this ruling to be overturned either by a subsequent Court or by a Constitutional Amendment.

There remains one last manner in which the Court’s decision might be circumvented, as unlikely as it may be: joining the International Criminal Court. To join the ICC would invalidate any claim of absolute immunity. While domestic immunity would remain intact, it would subject any representative of the Executive Branch, whether the President or a member of the Cabinet, to international laws regarding genocide, war crimes, crimes against humanity, and aggression. The United States as heretofore rejected any idea of membership in the ICC for fear that doing so might somehow remove a portion of our national autonomy. However, to join the court and set ourselves up as an example would likely further our international standing and the ability to facilitate peace. Regrettably, there is no one in Congress standing up for such an example.

All the pressure and responsibility to maintain the Democracy of the United States rests upon your shoulders. There are no viable options without your voice, your participation, and your persistent involvement in the process. Your utilization of social media, for example, can be directly instrumental in establishing a consensus that carries into this fall’s elections. People want to vote for what they think will win, often with little regard for their personal opinions. YOU can encourage them to have opinions that make a difference and to embrace those opinions.

If you disagree with the Court’s decision, you have no other choice. Be that example that others can follow.