This article first appeared in Slate.
Defenders of democracy are rightly lamenting the Supreme Court’s decision that presidents are immune from criminal prosecution when performing “official acts.” But Congress has an opportunity to limit the damage that Trump v. U.S. may cause. To meet the moment, lawmakers will need to reclaim Congress’ role as a check on the presidency and rebalance the power between the two branches.
Under the court’s decision, all “official acts”—defined extremely broadly—are shielded to some degree. But the court drew a key distinction between official acts that fall within a president’s “exclusive sphere of constitutional authority,” for which the president enjoys absolute immunity, and those that also implicate the powers of Congress, for which immunity might only be “presumptive.” Which powers fall into which category thus becomes a crucial question.
To answer that question, we look first to the U.S. Constitution. Article 1, which pertains to Congress, includes 18 separate clauses setting forth the powers of the legislature. By contrast, Article 2, which pertains to the president, assigns relatively few specific powers beyond the general authority to wield “the executive power.” Most notably, the president is commander in chief of the armed forces. He also has the power to grant reprieves and pardons for violations of federal law, negotiate treaties, receive ambassadors, and nominate judges, ambassadors, and executive branch officials.
Critically, not every power the Constitution assigns to the president represents an “exclusive sphere” of presidential authority. There are multiple areas in which the powers of the president and Congress overlap. In those areas, Congress may act in ways that restrict the president’s authority. The Supreme Court made that rule explicit in 1953, when it held that President Harry S. Truman violated the law by seizing steel mills to ensure sufficient production of steel during the Korean War.
Even in the handful of areas that the Supreme Court has identified over the years as clearly “exclusive” to the executive, the president’s powers can quickly bump up against those of Congress. For instance, although the president alone exercises the commander-in-chief authority, the scope of that power is limited by Congress’ own power to raise and support armies and to declare war. The president cannot conjure divisions that Congress hasn’t funded, and at least in theory, the president cannot wage war without Congress’ blessing.
Similarly, the Supreme Court has held that the president is the “sole organ of the federal government in the field of international relations.” Thus, the president alone can recognize the legitimacy of a foreign government. But any treaty the president negotiates with that government can be rejected by the Senate, and Congress controls commerce with—and immigration from—that nation.
Even the power to decide which crimes to prosecute, which the Constitution entrusts solely to the executive branch, has its limits. Congress cannot direct the executive branch to prosecute certain people or to refrain from prosecuting them. By the same token, however, the president cannot amend the criminal code in order to prosecute someone for actions that do not constitute a crime under existing law.
Justice Sonia Sotomayor’s powerful dissent in Trump v. U.S. suggests that the ruling would render the president immune from prosecution if he ordered the Navy’s SEAL Team 6 to assassinate a political rival. However, any such immunity would likely be presumptive rather than absolute (and of course, any Navy SEAL who carried out the order would still be subject to prosecution; murder is a crime in every state, and the president has no power to pardon offenses under state law). The Constitution clearly gives Congress power over domestic deployment of the military. Indeed, Article I gives Congress alone the authority to provide for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions.”
Make no mistake: The Supreme Court’s immunity decision is still extremely dangerous. For one thing, even narrowly construed, the president’s sphere of exclusive authority provides ample room for lawless action. One need only look to the court’s ruling that Trump is absolutely immune with respect to his efforts to coerce the attorney general into bringing prosecutions for (nonexistent) voter fraud as part of a scheme to have states submit false slates of electors. A presidential coup, if conducted through official communications, has seemingly been decriminalized.
Moreover, the court did not resolve the question of whether the president’s immunity for official actions outside his or her exclusive sphere of authority is absolute or merely presumptive. (The opinion says the president is entitled to “at least”presumptive immunity in those cases.) Even in the latter case, prosecutors could overcome the presumption only by showing that the prosecution would pose “no dangers of intrusion on the authority and functions of the Executive Branch.” As Sotomayor noted, this would be a very high bar to clear.
Adding to the challenge, modern presidents have increasingly laid claim to broad inherent powers not explicitly granted by the Constitution’s text—particularly in areas relating to war and emergencies. For instance, it has long been recognized that the president, as commander in chief, has the authority to defend the nation against sudden attack, regardless of whether Congress has declared war. In recent decades, however, presidents have argued that they may also take unilateral military action to defend “important national interests”—a sprawling interpretation that carves out a whole new sphere of presidential authority.
In some cases, administrations have asserted that their inherent powers cannot be constrained by Congress. After 9/11, the Department of Justice opined that the president, when acting as commander in chief, was not bound by the laws prohibiting torture—or even by the laws barring warrantless surveillance of Americans’ communications on domestic soil. And Department of Defense policies assert that military officers have inherent authority to perform domestic law enforcement functions in certain emergency scenarios, notwithstanding the express prohibition in the Posse Comitatus Act.
Such assertions tend to evade judicial review. Courts either find that the plaintiffs lack standing, that the case cannot be litigated without revealing “state secrets,” or that the case presents a “political question”—in other words, it must be resolved through negotiations between the political branches rather than through litigation. If a court decides it can hear the case, it will often look to historical practice, upholding the president’s assertion of power if presidents have repeatedly exercised that power and Congress has acquiesced in that exercise.
That’s worrisome, because Congress has been complicit in many of the presidential power grabs of recent decades. Congress has not declared war since World War II, yet the United States has been embroiled in both major and minor armed conflicts for most of the past century. Congress has done little to assert its own authority in the face of unauthorized U.S. military operations. When President George W. Bush violated the Foreign Intelligence Surveillance Act by conducting warrantless wiretapping of Americans’ international communications, Congress meekly amended the law to legalize the administration’s conduct. For more than 40 years, Congress even ignored its own mandate, set forth in the National Emergencies Act, to hold periodic votes on whether to terminate presidential declarations of national emergency.
Fortunately, there are some indications that Congress is beginning to try to claw back some of the authority it has abdicated to the president. During the Trump administration, Congress passed resolutions (which Trump vetoed) to end U.S. support for Saudi Arabia’s military operations in Yemen, prevent the use of military force against Iran, curtail arms sales to Saudi Arabia, and terminate the president’s declaration of a national emergency at the southern border. Congress is also currently considering legislation that would require presidential declarations of national emergency to terminate automatically after 30 days unless approved by Congress.
The Supreme Court’s immunity decision adds urgency to the project of restoring the balance of power between the president and Congress. Rightsizing the president’s “exclusive sphere of constitutional authority” was always critical to preventing abuses of presidential power and safeguarding our democracy. After the court’s ruling in Trump v. U.S., it is also the key to minimizing the zone in which presidents can deliberately commit crimes without fear of being brought to justice.
