Trump v. Anderson1 and Trump v. United States2 were two momentous decisions in a momentous Supreme Court term. Sharing then-former — and now current — President Trump as a party, the decisions hold important implications for presidential power and accountability.
Anderson arose from a suit brought by Colorado voters to challenge Trump’s inclusion on the Republican primary ballot in that state.3 They argued that Trump organized and incited the mob that attacked the Capitol on January 6, 2021, and disrupted the Electoral College vote count and certification.4 In their view, this disqualified him from serving as President under section 3 of the Fourteenth Amendment, which (in relevant part) bars any person who took “an oath . . . to support the Constitution . . . [and then] engaged in insurrection or rebellion” from “hold[ing] any office . . . under the United States.”5 The Colorado Supreme Court agreed, but the United States Supreme Court reversed, in a per curiam decision with four Justices concurring.6 It held that the states lack authority to enforce section 3 against federal officeholders and candidates for federal office, concluding that the Constitution assigns that responsibility to Congress.7
Trump v. United States arose out of Special Counsel Jack Smith’s investigation and a grand jury’s indictment of Trump for conspiring to overturn the results of the 2020 presidential election “by spreading knowingly false claims of election fraud.”8 Trump sought to have the indictment against him dismissed on grounds of presidential immunity.9 The D.C. District Court and the D.C. Circuit both rejected this effort, but the Supreme Court vacated and remanded, this time by a 6–3 vote.10 It held that a former President enjoys absolute criminal immunity for exercises of core presidential powers and is at least presumptively immune for other official actions.11
In Structural Logics of Presidential Disqualification,12 Professor Aziz Huq trains his eye primarily on Anderson, carefully dissecting the arguments offered by the per curiam opinion and demonstrating their substantial analytic inadequacy. Huq contends that “three distinct structural logics,” or arguments rooted in constitutional structure, underlie the opinion.13 These logics, sounding in “federalism, the separation of powers, and democracy,”14 are interwoven with prudential and consequentialist concerns about the national impact of state enforcement of section 3 against presidential candidates.15 Left by the wayside are the type of textual and historical arguments that the Roberts Court usually claims to prioritize in constitutional analysis.16 Huq chides the Court for its methodological inconsistency, but the bulk of his critique aims to show the analytic flaws in these structural arguments.17
Huq also highlights important linkages between the two Trump decisions. He notes that both ended — or at least created substantial obstacles for — efforts to impose legal accountability on President Trump for his actions to overturn the 2020 election and prevent counting of the Electoral College votes.18 Both rested fundamentally on “raw consequentialism”19 rather than “careful reasoning from text, precedent, or history.”20 In Huq’s view, both were deeply flawed decisions that “inflict serious harms on the project of enduring democratic rule”21 and represent “a defense, at the cost of legality, of a specific candidate for presidential office.”22
Huq’s criticisms of Anderson and Trump v. United States are compelling. He persuasively identifies several problems besetting the Court’s reasoning in Anderson, and the two decisions are conjoined in several ways, not least that they both helped smooth the path to Trump’s re-election as President.23 Yet there are also important differences between these two Trump cases, differences that suggest Anderson is less problematic than Huq argues but Trump v. United States is especially concerning. To begin with, Anderson’s unanimous intuition that federalism principles and national interests may limit a state’s ability to disrupt the presidential election has some precedential basis and structural appeal.24 It is harder to say the same about the Court’s decision in Trump v. United States, which deviates notably even from the key precedents it cites, expands presidential power significantly, and leaves the presidency dangerously imbalanced.25 The two decisions also differ in their approach to the courts and Congress. Anderson establishes Congress’s centrality in presidential disqualification under section 3 and simultaneously removes the Court itself from playing a major role, a feature that the Court never mentions but that was likely an important force behind the decision.26 Trump v. United States, by contrast, largely erases Congress from assessments of presidential criminal immunity and ensures that the courts will play a starring role in any prosecution of a former President.27
President Trump’s reelection only underscores Trump v. United States’ dangerous import. The decision already has prefigured in Trump’s unprecedented assertions of presidential authority.28 Even as Trump threatens to turn his Administration on his enemies,29 the decision makes clear that he need not worry much about criminal liability for any official acts during his second term. The challenge going forward will be enforcing legal constraints in a world of broad presidential power and immunity.
Finally, it is important to consider both Anderson and Trump v. United States against the backdrop of the Supreme Court’s recent jurisprudence on the presidency. Despite formalist moments, this jurisprudence is more consequentialist and functionalist than Huq acknowledges. Anderson and Trump v. United States also fit with this jurisprudence’s glib structuralism. And Trump v. United States accords with the broad account of presidential power this jurisprudence embraces, even as the Roberts Court pulls back on administrative and specifically regulatory authority.30
Part I of what follows responds to Huq’s discussion of Anderson and offers a more sympathetic take on the decision. Part II identifies the critical differences between Anderson and Trump v. United States that make the latter decision particularly dangerous. Part III situates both decisions in the broader arc of the Roberts Court’s jurisprudence on the presidency, demonstrating their continuity with this jurisprudence as well as highlighting some of its flaws.
I. Anderson and Presidential Disqualification
One of the great strengths of Huq’s article is his close parsing of the Anderson per curiam’s analysis to identify and critique its core claims. As he notes, the “[m]ost prominent” argument in the opinion is based on “federalism principles about the allocation of power between the several states and the national government.”31 The per curiam’s bottom-line holding was that states could enforce section 3 against state officeholders and candidates using their pre-existing authority over their own governance, but could not enforce the provision against federal officeholders and candidates.32 In the Court’s view, states lack any pre-existing authority over federal candidates and “nothing in the Constitution delegates” that power to them.33 The per curiam was adamant that the Fourteenth Amendment did not contain such a delegation, viewing the Amendment as “expand[ing] federal power at the expense of state autonomy,”34 a “rebalancing of federal and state power” that such a delegation would “invert.”35 Instead, the per curiam described the Fourteenth Amendment as “speak[ing] only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.”36 In Huq’s words, “the Anderson per curiam inferred an institutional division of disqualification primarily from the Fourteenth Amendment and from the absence of a ‘delegation’ in the Constitution’s text.”37
Huq offers numerous criticisms of this reasoning, and many of his points hit home. He argues that in the past “the Court has consistently invoked ‘federalism’ as a reason for limiting federal power” under the Fourteenth Amendment, not expanding it.38 One example is the “congruence and proportionality” test that the per curiam invokes as a reason to limit state power under section 3.39 The Court developed this test as a restriction on Congress’s authority to enforce Fourteenth Amendment rights through restrictions on states.40 “Yet the per curiam adduced no reason to think that federalism should constrain national power when it comes to enforcing” Fourteenth Amendment rights, “and then take on a different valence when it comes to presidential disqualification.”41 Moreover, Huq rightly notes that under the Supremacy Clause state courts are generally obligated to enforce the Fourteenth Amendment’s requirements when presented with a case raising a Fourteenth Amendment challenge.42 The per curiam “created a weird gap in that obligation,”43 resulting in the oddity of some of the Amendment’s provisions being self-executing while others are not.44
Huq also appropriately faults the per curiam for failing to grapple adequately with the Electors Clause of Article II, which provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”45 The Electors Clause is why states are the primary regulators of presidential elections, while the Article I Elections Clause provides state legislators with similar authority over congressional elections.46 The Electors Clause’s relevance to the dispute in Anderson was obvious, but the per curiam offered at best an “offhand treatment” of the clause.47 It stated simply that there was “little reason to think that these clauses implicitly authorize the States to enforce section 3 against federal officeholders and candidates” because “[g]ranting the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power.”48 Among other things, this response failed to address whether the clauses give states authority to enforce other constitutional qualifications on federal candidates — and whether denying states this authority, which they have long exercised, would invert Article II’s structure for presidential elections.49
Despite these well-taken criticisms, there is more to the per curiam’s federalism reasoning than they allow. Although the per curiam repeatedly invoked the Fourteenth Amendment’s rebalancing, its analysis appeared animated more by a different federalism principle, namely that “the Constitution guarantees ‘the entire independence of the General Government from any control by the respective States.’”50 So, too, the joint opinion of Justices Sotomayor, Kagan, and Jackson concurring in the judgment led with the proposition that “[s]tates cannot use their control over the ballot to ‘undermine the National Government.’”51 And both opinions voiced the concern that in practice allowing states to disqualify presidential candidates under section 3 would grant the states such control in a way that would harm the national government:52 “[S]tate-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that ‘the President . . . represent[s] all the voters in the Nation.’”53 The resulting “chaotic state-by-state patchwork”54 would undermine the crucial link the Framers envisioned “between the National Government and the people of the United States.”55
This principle that “a part” cannot control “the whole”56 surfaces more infrequently than other aspects of federalism, but it has a long pedigree. Perhaps its most prominent appearance came in McCulloch v. Maryland,57 where the Court famously put a stop to state efforts to tax the national Bank of the United States.58 The Court there underscored “that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.”59 The same principle underlies the doctrine of intergovernmental immunity60 and decisions holding that states lack power to issue writs of mandamus or habeas corpus against federal officials.61 Moreover, the Court has previously invalidated application of a state election measure to a presidential election in part out of concern that it “place[d] a significant state-imposed restriction on a nationwide electoral process.”62 Although in so doing the Court did not question state authority to impose election measures on federal candidates, it emphasized that the “national interest [in a presidential election] is greater than any interest of an individual State.”63 Similarly, in holding that states lack authority to add qualifications for congressional representatives, the Court underscored that states cannot undermine “the uniformity and the national character that the Framers envisioned and sought to ensure” in Congress.64
Huq dismisses this concern that state enforcement of section 3 would give the states control of the national government as answered by the Electors Clause, which in his view represents a specific textual delegation to the states to do exactly that.65 Writing recently in these pages, Professors William Baude and Michael Paulsen agree and castigate Anderson as “risible constitutional law.”66 Drawing on the Electors Clause, they argue that the decision “completely inverts the structure of federalism designed by the Framers of the Constitution with respect to such elections, which was explicitly to provide for elections to federal offices through the medium of state laws and procedures.”67
But these arguments presume that the Electors Clause should be read for all it is possibly worth. The text of the clause does not expressly speak to state enforcement of candidate qualifications.68 Although the Court has repeatedly held that the clause gives states broad power over how electors are appointed, it has not previously read the clause to give states similarly broad power over candidate qualifications.69 An alternative view would counsel that the clause should be understood as limited by the prohibition on states controlling the national government, at least when it comes to their exercising their Electors Clause authority in a way that goes beyond what the clause expressly provides.70 Or, as Anderson’s joint concurrence puts it, the “power” states enjoy under the clause “is limited by ‘other constitutional constraint[s],’ including federalism principles.”71
Nor was this the first time that concern with vindicating national interests in the presidential election led the Supreme Court to read the Electors Clause narrowly. Over ninety years ago, the Court held that the importance of the President to the nation meant that Congress had power to regulate aspects of presidential elections beyond timing, notwithstanding the clause’s seeming grant of that power to the states and Congress being expressly authorized only to set a uniform national election day.72 The more cabined reading of the Electors Clause suggested in Anderson may be hard to square with original understandings of the clause,73 but it accords with the practice of congressional regulation and the Court’s prior recognition of the critical national interest in presidential elections.74 True, this case law authorized concurrent national regulation, not national exclusivity, and thus Anderson takes a step beyond existing precedent. Yet it does not strike me as that big a step, given the established part-versus-whole principle. In particular, in authorizing national regulation of presidential elections, the Court had also, by virtue of the Supremacy Clause, authorized state displacement in instances where valid national and state law conflict — notwithstanding state authority under the Electors Clause.75
To be sure, both the per curiam and the joint concurrence certainly could have done more to justify and develop their reasoning. For one thing, it is not clear why the part-versus-whole principle would prohibit only state disqualification of presidential candidates under section 3. Surely state disqualification of presidential candidates on other constitutional grounds, something states have done occasionally in the past, could pose the same risk of state control undermining national uniformity.76 Although there are ways the Court could try to distinguish between these bases of disqualification — such as that section 3 disqualification is more likely to be factually disputed, or that those other bases of disqualification were adopted alongside the Electors Clause — those distinctions at least need articulation and may not prove particularly persuasive.77 Granted, Anderson itself did not involve a charge of presidential disqualification on any grounds other than section 3, but addressing this issue mattered for understanding the import of the decision and assessing its plausibility.
For another, both opinions’ predictions of chaos assumed either that states would be disqualifying presidential candidates under section 3 without federal intervention or that such intervention, were it to occur, would have to take the form of congressional lifting of disqualification.78 Far more likely, however, would be intervention by the U.S. Supreme Court, with a consistent national approach resulting from its review of state disqualification decisions on the merits.79 It is hard to imagine that a state’s disqualification of a major presidential candidate would not quickly come before the Court for review. This was, of course, exactly the posture of Anderson itself.80 Indeed, the voters seeking Trump’s disqualification in Anderson made clear at oral argument that their goal was to obtain the Supreme Court’s determination of the matter, rather than leave disqualification decisions just to the states.81
The U.S. Supreme Court’s potential role overseeing state court disqualification decisions is strikingly hidden in Anderson. The per curiam did not mention such review at all, while the joint concurrence made only a passing reference to “insulat[ing] this Court”;82 neither acknowledged how review by the Court could impose order on the chaos of state-by-state presidential disqualification that they feared.83 This lack of attention stands in marked contrast to the briefs in the case, which contained several calls for the Supreme Court to play a unifying review function.84 For his part, Huq notes the order-enforcing role the Court could have played if states were allowed to disqualify, but treats it largely in passing and in terms of how the Court could have crafted the decision in Anderson itself, not as an ongoing check on states.85
Such silence should not be equated with unimportance. It seems more likely that the Justices’ reluctance to perform this potentially election-deciding role was a significant driver behind the decision.86 Stepping into presidential elections can be treacherous ground for the Court, given the probability that its actions will benefit one political party and may decide the election result, as occurred in 2000 with Bush v. Gore.87 Today, already facing record-low approval ratings overall and a nearly sixty-point partisan gap in approval ratings between Republicans and Democrats, the Court has little institutional capital to spare.88 To my mind, the impact of a decision on the Court’s institutional legitimacy can be a legally appropriate factor for the Court to consider.89 But the Court is often tagged as acting improperly if it decides a case with an eye to reputational concerns and rarely acknowledges that it might be doing so.90
At the same time as the Court was silent about its own ability to impose uniformity, it highlighted the power of another federal institution to do so: Congress. This was unusual; the Court’s far more typical move of late is to assert its own decisional authority at the expense of other institutions.91 According to the Justices writing the joint concurrence, this appearance of institutional modesty actually masked significant institutional overstepping. They read the per curiam as going beyond acknowledging Congress’s power over section 3 disqualification to requiring that Congress enact legislation under its Fourteenth Amendment section 5 power for such disqualification to occur.92 The joint concurrence complained that the per curiam unnecessarily and unjustifiably precluded other forms of federal enforcement of section 3, including by the courts.93 Even more starkly, it accused the per curiam of thereby trying to “insulate” Trump and other “alleged insurrectionists from future challenges to their holding federal office.”94
Yet whether the per curiam in fact imposed such a legislation requirement is a matter of debate, and the opinion need not be read so expansively.95 The per curiam described section 5 as “critical when it comes to Section 3” and as “[t]he relevant provision” in the Constitution that “empowers Congress to prescribe how [disqualification] determinations should be made.”96 And its emphasis on Congress’s authority could suggest that courts need legislative authorization to enforce section 3.97 But the per curiam nowhere expressly stated that Congress itself can only enforce disqualification through legislation. On the contrary, as Huq emphasizes, “the per curiam explicitly recognized ways in which section three can be effectuated without bicameralism and presentment,” such as each House’s power to judge the qualifications of its members.98
In short, from a separation of powers perspective Anderson arguably was more an act of Supreme Court abnegation than aggrandizement, even if the Court was advancing its own institutional interests by excising itself from section 3 enforcement. Moreover, while the per curiam certainly can be faulted for ambiguity and inadequate reasoning, one result of those deficiencies is to leave open — at least for now — Congress’s ability to enforce section 3 as it sees fit. The same is true of the states’ authority under the Electors and Elections Clauses to enforce constitutional disqualifications of federal candidates on bases other than section 3.
Huq views the per curiam’s ambiguity more ominously as a danger to democracy. He argues that “the per curiam . . . teed up an extremely complex, novel, and politically charged constitutional dispute [about section 3’s enforcement] for resolution in the interim between a presidential election and an inauguration.”99 In the end, the actual election result in the 2024 presidential election meant that challenges afterward did not arise, but the potential remains for future elections. Huq also underscores other ways the per curiam may ill-serve democracy, including by removing a potential means of holding Trump accountable for his false and dangerous attacks on the 2020 election.100 Of particular importance is his point that preservation of the Constitution’s democratic order may depend on “politically insulated” actors like courts being willing to enforce constitutional guardrails.101 Even assuming that a congressional effort to authorize federal and state courts to enforce section 3 on federal candidates would be upheld as “congruen[t] and proportional[]” under Congress’s section 5 authority,102 it seems highly unlikely that today’s politically polarized and closely divided Congress would enact such a measure. Hence, as Huq puts it: “To the extent Anderson matters on the margin, it is because the per curiam took off the table one of the remaining practicable mechanisms for addressing the abuse of apex political power in the American constitutional system.”103
These democracy arguments carry force. Yet state court enforcement of section 3 could have significant political and democratic fallout as well. Citizens may have no constitutional right to vote for a disqualified candidate,104 but judicial exclusion of candidates inevitably has an immediate countermajoritarian consequence of limiting popular choice. At least when major party candidates are involved, such actions will likely be perceived as partisan-inspired efforts to skew the election — just as Huq critiques the Court for being motivated by partisanship for not intervening.105 Moreover, the alternatives Huq flags to mitigate this effect — such as the Court imposing a high bar for section 3 disqualification106 — could have had consequences of their own, including limiting Congress’s ability to enforce section 3 more aggressively.
In the end, Anderson represents a relatively narrow, substantively defensible albeit analytically flawed decision that prioritized the Court’s institutional needs and avoiding immediate fallout over guarding against potential democratic harm in the future. To my view, that is an acceptable outcome for a case with pitfalls on all sides.
II. Trump v. United States and Presidential Immunity
Now consider Trump v. United States. There, the Court addressed whether the then-former President enjoyed immunity from criminal liability for his conduct while in office.107 Writing for a six-Justice majority, Chief Justice Roberts divided potential presidential acts into three categories. First, unofficial presidential acts receive no immunity.108 Second, presidential acts involving “core constitutional powers,”109 where the President’s authority is “conclusive and preclusive,” enjoy absolute criminal immunity.110 Third, any presidential acts within “the ‘outer perimeter’ of the President’s official responsibilities”111 in contexts where Congress has concurrent authority receive at least presumptive immunity, with no prosecution allowed unless the government can show that such a prosecution “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”112 According to Chief Justice Roberts, the central structural imperative underlying assessment of presidential immunity was ensuring the President be free to “tak[e] . . . ‘bold and unhesitating action,’”113 and criminal liability risked chilling necessary presidential “vigor” and distracting the President.114 The Chief Justice applied this framework to reject some charges against Trump and specify evidence that could not be used for others, and remanded for the lower courts to assess the rest of the indictment.115 Dissenting sharply, Justice Sotomayor accused the majority of creating an unprecedented immunity that put the President “above the law.”116
Although Huq focuses primarily on Anderson, he notes some striking parallels between these two Trump cases.117 Both decisions had the same bottom-line result of inoculating Trump from accountability for his actions seeking to overturn the 2020 election.118 Although Trump v. United States offered a more extensive analytic justification for its holding and relied more heavily on specific precedents, both decisions fundamentally rested on consequentialist and structural reasoning.119 Moreover, in both the Court gave little weight to seemingly contradictory text and practice.120
Yet focusing on these similarities risks creating a false equivalence. There are critical differences between these two decisions that make Trump v. United States far more dangerous and troubling. Some of these differences include Chief Justice Roberts’s unjustifiably broad view of core and exclusive presidential authority, his failure to meaningfully consider the costs of granting former Presidents immunity, and his sidelining of Congress in making determinations of presidential immunity.
It is worth first situating Trump v. United States in the context of historical practice. Chief Justice Roberts began his legal analysis in Trump v. United States by noting that the case represented “the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.”121 But that does not mean that criminal immunity for former Presidents was a new question for the executive branch. To the contrary, the notion of presidential criminal immunity had arisen periodically and been universally rejected. A prime example occurred in 1974, when President Ford offered former President Nixon a pardon “for all offenses against the United States which he . . . has committed or may have committed” while in office.122 As Justice Sotomayor noted in her dissent, President Ford would not have offered — and former President Nixon would not have accepted — the pardon unless they believed that the former President faced potential criminal liability.123 The same assumption underlay later special and independent counsel investigations and was stated expressly in a memo from the Office of Legal Counsel (OLC) in the Department of Justice, even as OLC concluded that a sitting President did enjoy criminal immunity.124
Chief Justice Roberts barely referenced this practice. His analysis instead rested heavily on two precedents: Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer125 and the Court’s 1982 opinion in Nixon v. Fitzgerald.126 The invocation of these decisions was hardly surprising; Justice Jackson’s Youngstown concurrence is the leading precedent governing analyses of presidential power,127 while Fitzgerald addressed presidential immunity, albeit in the context of civil damages actions.128 What was surprising was the expansive and unsupported account of presidential power Chief Justice Roberts derived from them.
Begin with Justice Jackson’s Youngstown concurrence. That opinion also offered a tripartite division of presidential action for use in determining whether a particular presidential act was authorized.129 One category covered presidential action in the face of a congressional prohibition.130 Justice Jackson argued that such presidential conduct could only be upheld if the President’s power was exclusive and thus Congress was disabled from acting at all.131 It was this category of exclusive presidential authority that Chief Justice Roberts invoked in Trump v. United States, but in so doing he ignored Justice Jackson’s insistence that claims of “[p]residential . . . power at once so conclusive and preclusive must be scrutinized with caution” in order to preserve “the equilibrium established by our constitutional system.”132 Instead, the Chief Justice described this category of presidential power capaciously and as including areas long thought subject to at least some congressional regulation.133
A prime example concerns the removal power. Chief Justice Roberts blithely included “[t]he President’s power to remove . . . those who wield executive power on his behalf”134 within the category of exclusive presidential authority, seeming thereby to call into question all statutory removal restrictions for executive branch personnel — even, for example, the basic for-cause removal protections afforded the civil service.135 To be sure, the Chief Justice then acknowledged in passing that this exclusive authority was subject to “two exceptions” recognized by the Court in recent decisions on removal136 — decisions that had already established the Roberts Court’s expansive view of presidential removal authority.137 But Chief Justice Roberts’s broad statement of the President’s exclusive authority here raises new questions about how these exceptions could be justified.138 Notably, this framing of removal as a general type of exclusive presidential authority goes well beyond the Court’s other recent removal decisions, which had rejected particular removal restrictions only after a case-by-case assessment.139 Moreover, the decision’s capacious view of the presidential removal power is already evident in the unprecedented assertions of removal authority that President Trump has made in just the initial weeks of his second term.140
Equally troubling was Chief Justice Roberts’s inclusion of the executive branch’s power “to decide which crimes to investigate and prosecute” within this category of exclusive presidential authority.141 As Professor Trevor Morrison argues, that would mean Congress cannot wield its own recognized authorities to set prosecution priorities — as, for example, it does when it directs the use of federal funds toward certain enforcement activities over others.142 In so reasoning, the Court went against its own precedent, which had acknowledged “Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”143 Chief Justice Roberts offered no explanation of why such acknowledged congressional authority was now discarded.144 He also made no mention of longstanding and post-Watergate policies insulating investigation and prosecution decisions in individual cases from presidential direction,145 even as he called those policies into constitutional question. Strikingly, Chief Justice Roberts tied this exclusive presidential authority over investigations and prosecutions to the President’s constitutional duty to “take Care that the Laws be faithfully executed.”146 If the Chief Justice meant thereby to include all the President’s take care actions in the category of exclusive presidential power, that would encompass a vast array of presidential conduct, as Justice Sotomayor argued in her dissent.147 Again, the consequences of such broad presidential control over investigations and prosecutions are already starkly on display, with the Justice Department seeking to dismiss (at least for now) its prosecution of New York City Mayor Eric Adams in order to advance the President’s immigration agenda.148
Chief Justice Roberts’s application of Nixon v. Fitzgerald similarly went well beyond what that precedent supported.149 In Fitzgerald, the Court had insisted that determining the scope of presidential immunity required “balanc[ing] the constitutional weight of the interest to be served” by a judicial action “against the dangers of intrusion on the authority and functions of the Executive Branch.”150 Fitzgerald had good company in insisting on a balancing analysis; that was the approach the Court applied nearly a decade earlier in United States v. Nixon,151 in concluding that a grand jury subpoena trumped Nixon’s executive privilege claims.152 And the Roberts Court itself has applied a balancing analysis in assessing presidential immunity and privilege claims.153 Further, a central characteristic of these decisions is the Court’s fact-based analysis and sensitivity to interests on both sides of the ledger. Thus, the fact that Fitzgerald involved private suits for money damages was critical to the Court’s analysis,154 with the Court noting that “the President would be an easily identifiable target for [private] suits”155 and that “there is a lesser public interest in actions for civil damages than . . . criminal prosecutions.”156 More recently, in Trump v. Mazars USA, LLP,157 the Court — also in an opinion written by Chief Justice Roberts — carefully assessed both Congress’s need for information and the particular dangers posed by congressional subpoenas for presidential information before establishing a multi-factor inquiry to govern congressional requests for such information.158
Trump v. United States, by contrast, engaged in faux balancing at best.159 Chief Justice Roberts barely acknowledged there were “countervailing interests” in play, let alone took seriously the constitutional importance of ensuring that criminal actions by the President not go unpunished.160 Instead, he focused almost entirely on the danger that presidential vigor and boldness might be chilled and the President distracted.161 On Chief Justice Roberts’s telling, the fact that criminal liability was in play rather than civil damages only made the risk of distorting presidential decisionmaking worse.162 A clear sign of the Chief Justice’s one-sided approach was his selective elevation of half of Fitzgerald’s balancing test — the part that considers “dangers of intrusion on the . . . Executive Branch” — as the sole measure of when presumptive immunity applies.163 Equally revealing was his conclusion that the presence of any such danger with respect to an official act, no matter how attenuated, meant the President was immune.164 This analysis marks a stark contrast with the approach the Court took just a few years ago in Trump v. Vance,165 when Chief Justice Roberts wrote a majority opinion for the Court rejecting absolute immunity or heightened protection for the President from state judicial process.166 In Vance, the Chief Justice downplayed the risk of distraction, harassment, or other burdens on the President and emphasized “the public interest in fair and effective law enforcement.”167 Thus, Trump v. United States not only lacked precedential support for how it applied the governing framework it laid out, but that framework itself went beyond what quite recent prior decisions had established.
The decision is also deeply flawed from an institutional perspective because of how it largely erased Congress from analysis of presidential immunity. Such erasure resulted in part from Chief Justice Roberts’s tying presidential immunity to instances of exclusive presidential authority, because by definition Congress lacks power to regulate in those instances. But the Court also sidelined Congress on immunity in contexts of concurrent congressional authority, with the Chief Justice invoking Congress’s legislative handiwork only in determining the boundary between official and unofficial actions.168 The Chief Justice made no reference to Congress’s views on questions such as whether presumptive immunity should be overcome, even when the President is acting using power delegated and otherwise regulated by Congress. Nor did Chief Justice Roberts signal that the analysis might be different, or that Congress might have a greater say over the scope of immunity, in the extraordinary context where a President has been impeached. Instead, under Trump v. United States the power to determine whether the President is immune from criminal liability appears to rest almost entirely with the courts.
This sidelining of Congress from presidential immunity determinations stands in significant contrast to the Court’s affirmation of Congress’s centrality in Anderson.169 It is also a marked difference from Fitzgerald, where the Court emphasized that it was only deciding the President’s civil damages immunity “in the absence of explicit affirmative action by Congress” subjecting the President to suit.170 Congress’s exclusion from the immunity analysis in Trump v. United States is also notable given the obvious policy basis for assessments of presumptive immunity. Here many of the presidential actions at issue are ones that rest on congressional grants of authority or are actions that Congress has authority to regulate.171 As a result, judgments about how to value energetic enforcement compared to accountability and the risks of harm from law violations are not simply constitutional questions; they also represent policy choices on which Congress’s views seem particularly relevant.
Moreover, the Court had before it alternative approaches that would have preserved a more significant role for Congress while still limiting presidential criminal liability. Concurring, Justice Barrett emphasized the importance of assessing “whether the relevant criminal statute reaches the President’s official conduct” before determining whether the President would be immune if it did.172 She argued that this “threshold question of statutory interpretation is a nontrivial step,”173 noting that such interpretation may reveal that Congress intended a public authority exception or in other ways may have exempted the President from a “broadly worded statute.”174 Even more protective of the President would be the clear statement rule that Trump offered as an alternative to his broad claim of absolute immunity, under which generally applicable criminal laws should not be read to apply to the President without a clear congressional statement to that effect.175 Such a clear statement approach had support in the Court’s precedent176 and would have allowed it to avoid the constitutional question of immunity. Yet the Court chose instead to hold that the Constitution mandates broad presidential criminal immunity. It is hard not to see the Court as intentionally excluding Congress and providing a constitutional framework that would take the question of presidential immunity largely out of Congress’s hands.177
A final point worth considering is how Trump v. United States will impact accountability mechanisms within the executive branch. Chief Justice Roberts expressed deep skepticism about executive branch protections against prosecutorial abuse, arguing that criminal immunity was necessary to prevent “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors.”178 Absent from the opinion, however, was any consideration of how such immunity might affect internal executive branch checks that seek to prevent the President from engaging in unlawful conduct in the first place. Although the criminal trial context of Trump v. United States frames the decision as focusing more on external controls on the President, in practice internal and external checks are not so separable. In particular, executive branch lawyers draw on judicial decisions prohibiting certain conduct to dissuade agency leaders and White House staff from pursuing courses of action that would likely be held unlawful.179
By inoculating the President against criminal liability, Trump v. United States makes it harder for executive branch lawyers to push back on unlawful presidential action. How much harder is unclear and will depend in large part on the decision’s implications for officials below the President. In practice, suits against the President directly are rare.180 Instead, suits against lower officials for declaratory and injunctive relief, as well as these officials’ potential criminal and damages liability for legal violations, are the central mechanisms for enforcing legal constraints on the executive branch.181 If the decision is read as immunizing lower officials against suits for declaratory and injunctive relief or criminal liability, it could profoundly undermine both internal and external mechanisms for ensuring the executive branch operates lawfully.
Reading Trump v. United States to give lower officials immunity against traditional equity suits seems a particularly unlikely step, given the different context and well-recognized use of such process to avoid the constitutional issues presented by suits against the President.182 Yet as Professor Thomas Schmidt argues, coercive suits against lower officials cannot reach some significant presidential actions.183 In addition, the Supreme Court has already pulled back somewhat on the availability of coercive actions against lower officials to enforce statutory requirements,184 which might also limit the ability of this mechanism to compensate for the accountability holes created by Trump v. United States.
A strong argument can be made that Trump v. United States also should have no impact on the potential criminal liability of officials other than the President,185 but the broad language of the opinion makes its import on this front somewhat unclear. Chief Justice Roberts justified immunity based on the President’s unique role,186 and the Court has held previously that presidential aides are not entitled to the absolute immunity from damages that the President enjoys.187 Although the Court also concluded that the danger of unduly chilling and distracting lower officials justified qualified immunity from damages,188 the mens rea requirements for criminal liability already provide lesser protection of this sort. An extension of criminal immunity to lower officials seems particularly hard to justify where Congress enjoys concurrent authority, given Congress’s “broad authority to establish and organize the Executive Branch.”189 The implications of the decision for lower officials in contexts of exclusive presidential authority are harder to parse. If the President enjoys “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” as Chief Justice Roberts broadly claimed,190 that might suggest Congress lacks authority to regulate those functions at all, even when performed by lower officials.191 But the President’s authority could be viewed more narrowly as encompassing simply the authority to direct executive branch personnel on how investigation and prosecution should proceed, and not in addition to control the consequences of such investigatory or prosecutorial actions.
Trump’s statements as a candidate about seeking retribution against those who sought to hold him accountable,192 and his early actions in that direction as President,193 might suggest that the Court’s concern with cycles of executive branch cannibalization has merit. Yet if so, Trump v. United States will only make the risk of such behavior worse, by freeing Presidents from fear of criminal liability once their own terms come to an end and potentially undermining internal rule of law constraints. Moreover, it merits note that much of Trump’s threatened retribution involves threatened actions against former officials other than President Biden.194 As just discussed, taking such threats off the table would not only necessitate a broad and unjustifiable grant of criminal immunity to lower-down officials, but also magnify many times over the decision’s evisceration of legal constraints on the executive branch.
In sum, Trump v. United States is a deeply flawed decision that posits broad and unprecedented presidential immunity, sidelines Congress, empowers the courts, and risks undermining internal executive branch guardrails. It significantly expands presidential authority in ways not limited to questions of presidential criminal immunity and represents a major reshaping of the presidency, and its full implications may not be apparent for years. Anderson is both more defensible in its reasoning and more limited in its import.
III. The Roberts Court, Interpretive Method, and Presidential Power
One shared trait between the two decisions, however, is worth emphasizing because of the lessons it offers for how the Roberts Court perceives the presidency. This is their similar analytic style. As Huq flags, both decisions are driven by consequentialist and structural reasoning.195 In Anderson, this reasoning manifests in the part-versus-whole principle and the Court’s insistence that state enforcement of section 3 disqualification would lead to chaos, as well as the Court’s unspoken desire to not get drawn into presidential disqualification disputes.196 In Trump v. United States, the Court’s central conceit is that the Constitution structurally requires a bold and energetic presidency, and ensuring the President is not chilled or distracted is therefore a constitutional imperative.197
Huq charges the Roberts Court with methodological inconsistency, given its recent rejections of consequentialism in constitutional analysis.198 Numerous Justices self-identify as originalist, and an emphasis on text, history, and tradition — and refusal to consider effects or relative costs and benefits — have dominated prominent individual rights decisions.199 But this critique is less apt with respect to the Roberts Court’s jurisprudence specifically on the presidency. Here the Roberts Court is more fairly described as consistently consequentialist, at least to some degree.
This consequentialism is evident in decisions on the presidency written by liberal Justices with conservatives in dissent, as well as decisions with the opposite composition. It is also evident in decisions addressing different aspects of the presidency. Consider Zivotofsky v. Kerry,200 in which a 5–4 Court, in an opinion written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that the President enjoys “exclusive power” to recognize foreign governments.201 In reaching this result, Justice Kennedy considered “[c]onstitution[al] text[,] . . . structure, . . . precedent[,] and history,”202 but also invoked “functional considerations. Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.”203 In Trump v. Mazars, addressing congressional subpoenas for the President’s personal information, Chief Justice Roberts’s 7–2 majority opinion considered the consequences that different analytic approaches would have on both Congress and the President.204 In Trump v. Vance, a 5–4 Court considered the consequences of a state criminal subpoena in deciding that the President enjoyed no special protection against such process;205 arguing for greater presidential protection, Justices Kavanaugh, Gorsuch, and Alito all emphasized the risk that such subpoenas would be abused by state prosecutors.206 And in Seila Law LLC v. CFPB,207 a 5–4 Court, in a majority opinion written by Chief Justice Roberts with Justices Kagan, Ginsburg, Breyer, and Sotomayor dissenting in part, argued that a for-cause limit on the President’s ability to remove the CFPB Director was unconstitutional because, particularly combined with other features of the CFPB, it allowed the Director to operate too freely from presidential control.208 Moreover, precedents such as Fitzgerald and United States v. Nixon demonstrate that consideration of the impact a decision might have on the President’s ability to function is a longstanding feature of the Supreme Court’s approach to the presidency.209
Another frequent trait of the Roberts Court’s jurisprudence on the presidency is its broad structural reasoning, with the Court often invoking overall checks and balances and the importance of a politically accountable and energetic President. In Seila Law, for example, the Court argued that the Constitution gives the President unitary control of all executive power to ensure presidential energy and dispatch, with presidential political accountability serving as the check against abuses of power.210 Here, too, both Anderson and Trump v. United States fit right in. Anderson’s core claim is a structural insistence that the President must be politically accountable to the nation as a whole, with no single state able to undermine that central structural feature.211 Meanwhile, Trump v. United States justified its grant of immunity on the structural imperative of presidential boldness and energy — including against the potential factional abuse wrought by partisan politics.212
Such consequentialism and structural checks-and-balances reasoning is a signature feature of a functionalist approach to the separation of powers.213 Functionalism is commonly contrasted with separation of powers formalism, an approach that emphasizes constitutional text and categorical distinctions among different types of power.214 I have elsewhere described the Roberts Court’s approach to the separation of powers as “formalist and originalist,”215 but that characterization is more true of the Court’s approach to questions of administrative authority than presidential power. In assessing the constitutionality of administrative adjudication arrangements, for instance, the Court emphasizes original understandings and the need for a strict divide between executive and judicial power.216 When it comes to the presidency, however, the Roberts Court often takes a functionalist approach or combines formalist and functionalist reasoning.217 In Seila Law, for instance, the Court asserted a formalist view of unitary presidential power over the executive branch tied to functionalist considerations of presidential energy and political accountability.218 Mazars is more thoroughly functionalist, with the Court there rejecting Justice Thomas’s favored prohibition on Congress seeking private presidential information outside of impeachment,219 and instead identifying a range of factors for courts to balance in assessing whether congressional subpoenas for such information are constitutional.220 Trump v. United States is another prime example, combining a formalistic analysis of the President’s core or exclusive authorities with a heavily functionalist and consequentialist assessment of immunity in other contexts.221
It also merits noting that the Roberts Court’s structural and functional reasoning about the presidency is often strikingly glib, drawing broad inferences about the structure of presidential authority without careful engagement with constitutional text, history, or precedent. Seila Law is again a case in point. Writing for the majority, Chief Justice Roberts argued that the Constitution gives the President unitary control of all executive power to ensure presidential energy and dispatch, insisting that “the Framers made the President the most democratic and politically accountable official in Government” in order “[t]o justify and check” such consolidated executive authority.222 In so arguing, Chief Justice Roberts never paused to square this assertion about the centrality of presidential political accountability with the Constitution’s provision of the Electoral College or the Electors Clause, which preclude direct presidential election and leave the method of presidential elector selection to the states.223 Nor did he engage with the many other textual provisions weighing against the unitary executive view.224 The Chief Justice also ignored historical evidence demonstrating that the Framers did not view the executive as the most politically accountable branch225 and had accepted a number of restrictions on presidential removal as compatible with the grant of the executive power.226 And he offered an account of precedent that failed to meaningfully grapple with how the relevant decisions had been understood over time.227 Unfortunately, as detailed above in Parts I and II, Anderson and Trump v. United States are of a piece here as well.
Viewing Anderson and Trump v. United States alongside the rest of the Roberts Court’s presidential decisions thus makes clear that they are part and parcel of the Court’s broader approach to the presidency. The account of the presidency the Court is fashioning, moreover, puts a premium on democratic control of executive power.228 The Roberts Court views presidential power expansively, frequently asserting presidential authority against perceived congressional intrusions. But it takes a far more suspicious and restrictive approach when it comes to claims of administrative authority, at least of the regulatory variety, with the Court emphasizing administrative officials’ lack of electoral accountability.229 The irony is that the Court’s resultant undermining of administrative power and capacity can end up undermining political accountability, as Presidents may lack the ability to implement the regulatory agenda on which they were elected.230 That result may be less true for the second Trump Administration, which has made reducing the authority and independence of federal administrative government a singular focus.231 But even the Trump Administration has recognized the importance of administrative capacity in some contexts.232
A similar irony befalls Anderson and Trump v. United States. The Roberts Court defended these decisions as necessary to protect the presidency. But their effect was to assure that Donald Trump would not face consequences for seeking to subvert the 2020 presidential election, an effort that profoundly threatened the critical feature of presidential political accountability. To the extent they make such presidential election attacks more likely, Anderson and Trump v. United States will end up damaging the presidency more than they protect it.