With his usual clarity - which leaves you with "of course, why didn't I think of that" - Cass Sunstein deconstructs and - to my view - dismantles the opinion by John Roberts for a 6-3 majority in Loper Bright Enterprises v. Raimondo, Secretary of Commerce The right-wing justices effectively immunized Donald Trump from prosecution for his incitement of the riot on January 6, 2021 which obstructed the ordinary, peaceful transfer of power.
Sunstein asks Does some provision of the Constitution give the President unquestionable power, such that neither Congress nor courts may intrude on it?
For Roberts and the Trump-bolstered majority the answer is Yes. But when the originalists search the text they come up dry. So they construct a structural argument based on the consequentialist surmise that if one President is allowed to order the prosecution of his or her predecessor, then every successor would live in fear of their successor. And the exercise of Presidential power would be obstructed. Got it? So their solution is absolute immunity for core functions and presumptive immunity for others.
Sunstein turns to the estimable Robert Jackson's opinion in Youngstown Sheet & Steel Tube , 343 U.S. 579 (1952) which upheld . There the great Justice and war crimes prosecutor deploys a tri-partite scheme for review of exercises of presidential authority. When it acts contrary to Congress that power is at its lowest ebb:
When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the
matter. Courts can sustain exclusive presidential control in such a case only by
disabling the Congress from acting upon the subject. 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.
In Roberts view:
when the President’s authority is granted by the Constitution, it is sometimes “conclusive and preclusive.”If so, neither Congress nor the courts can control the President’s authority and discretion: “once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.”
So when Trump met with his acting justice Department leaders and others to plan his attack on the reported results of an election he lost he was clothed with "absolute immunity". The ordinary criminal law is preempted.
Sunstein concludes
For those who insist on fidelity to the legal sources, the most charitable verdict on
Trump v. United States is Scottish: Not proven. For those who are favorably disposed
toward judicial statesmanship, a degree of skepticism is also in order. The parade of
horribles, signaled by the idea of a self-cannibalizing executive branch, is met by another
(and worse) parade of horribles, signaled by an immensely powerful President who is, for
the first time in U.S history, broadly free from the operations of criminal law.
Preliminary draft 7/16/24
All rights reserved
Presidential Immunity and Democratic Disorder
By Cass R. Sunstein*
Abstract
Before Trump v. United States, issues of presidential immunity were generally
analyzed by reference to the following question: Would subjecting the President
to a legal proceeding compromise his ability to perform his constitutional
functions? After Trump v. United States, the immunity issue is analyzed, in
significant part, by reference to an altogether different question: Does some
provision of the Constitution give the President unquestionable power, such
that neither Congress nor courts may intrude on it? It is imaginable that the
second question is the right one, but the Court’s analysis is brisk and conclusory; it
does not seriously engage with the standard sources of constitutional
interpretation. For example, there is no real effort to show that the Court’s various
conclusions follow from text or the original public meaning. That is a puzzle. Part of
the explanation for the new framework may lie in a single sentence, pointing to “the
prospect of an Executive Branch that cannibalizes itself, with each successive
President free to prosecute his predecessors, yet unable to boldly and fearlessly
carry out his duties for fear that he may be next.” This pragmatic concern might
provide the motivation for some of the Court’s momentous constitutional
conclusions. It links Trump v. United States with a variety of other decisions,
including Bush v. Gore and Trump v. Colorado, that also seem concerned with the
problem of democratic disorder – a kind of Representation Reinforcement 2.0 (or is
it 1.0?). For those who insist on fidelity to legal sources, the most charitable verdict
on Trump v. United States is Scottish: Not proven.
Sunstein, Cass R., Presidential Immunity and Democratic Disorder (July 16, 2024). Available at SSRN: https://ssrn.com/abstract=4896559 or http://dx.doi.org/10.2139/ssrn.4896559
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