After President Joe Biden unveiled his unconstitutional attacks on the Supreme Court in the form of a “reform plan,” the American Cornerstone Institute is working to spread the word on why each of the three prongs of that plan is blatantly unconstitutional. This Common Sense Solutions Paper will highlight the first piece of President Biden’s proposal—abolishing presidential immunity—and explain why this part of the plan is unconstitutional. On July 1, the Supreme Court released its long-awaited decision in Trump v. United States, holding that a president is entitled to absolute immunity from criminal prosecution for official acts within his “conclusive and preclusive constitutional authority.” The Court further held that the president is entitled to the presumption of immunity for all other official acts as well, although he is not entitled to immunity for unofficial acts.
For most legal scholars, this decision came as no surprise. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that the president is “entitled to absolute immunity from damages liability predicated on his official acts.” Their reasoning held that the unique status of the presidential office demands that he be immune from lawsuits for his official acts based on the separation of powers inherent in our Constitution. For most Americans, and to wit, for over two centuries of our republic, this has been widely understood. If the president were liable for civil suits from private citizens in the discharge of his duties, he could be endlessly distracted with frivolous lawsuits and utterly unable to perform the essential functions of his office. Moreover, even the possibility of a lawsuit would have a “chilling effect” on the presidency itself; a president may hesitate, or even decline to take necessary action due to the threat of subsequent lawsuits, thereby restricting his ability to perform much-needed executive functions with the energy needed to do so, as explained in the Federalist Papers.
In this manner, Trump v. United States is simply the logical application of Nixon v. Fitzgerald, only this time applied to a criminal context. The separation of powers principle of our constitutional systems requires that a president maintain immunity from not just civil, but also criminal liability for his official actions in executing the duties of his office. The same logic of Nixon v. Fitzgerald applies to the criminal context as well, and perhaps even more so; if a president has to worry about criminal prosecution for every official act he takes—including those under pressure in defense of our country—then he cannot effectively discharge the duties of the presidency. Moreover, such a decision discourages the political “back and forth” dynamic of changing administrations, who may have the incentive to indict their political opponents when they are in office.
While some have criticized this decision, the reality is that this ruling only covers the “official acts” undertaken as president. The Court was clear that there is no immunity for unofficial acts taken by the president. Any acts that a president takes prior to, or after his time in office are not covered by immunity, nor are acts that are taken as president which fall outside that “outer perimeter” of his official duties, as was the case in Nixon v. Fitzgerald.
President Biden’s proposal does not present a viable path forward, and injects politics into the judiciary. There is simply no better way to ensure that the president’s office remains energetic, responsive, and able to execute the functions necessary to lead our country. In short, President Biden’s calls to overturn presidential immunity through a Constitutional amendment undermine the office of the presidency, unduly impede executive functions, and run contrary to the separation of powers inherent in our Constitution. For these reasons, Congress should reject this radical proposal and allow our president to fully execute the duties of the office, free from the fears of criminal prosecution.
