Rich Bernstein at the Society for the Rule of Law:
On its face, the judicial method employed by Trump v. United States resembles Roe v. Wade in the ways that matter. Like Roe, the Trump majority explicitly relies on its views of wise policy. For example, the Trump majority invents immunities “to enable the President to carry out his constitutional duties without undue caution.” The Roe test eventually became “undue burden.” Both decisions support their policy pronouncements with one-sided snippets from prior cases that are readily distinguishable both factually and contextually.
Both decisions give one-sided descriptions of the policy considerations. The Trump majority thus worries about tit-for-tat prosecutions from successive administrations, but does not even rebut the dissent’s demonstration that immunity incentivizes all manner of future official presidential acts that constitute federal criminal conduct, including “[o]rganiz[ing] a military coup to hold onto power.” Both the Trump majority and Roe even announce a tri-partite division of rules going forward, just as a statute would. And so, we have gone from judge-made policies for three trimesters to judge-made policies for three buckets of presidential immunity issues. Missing from Trump, as in Roe, is any consideration of whether it is the politically-unaccountable Court that has the power to make policy in this area rather than the political branches that the voters elect and can replace.
Concomitantly, missing from the Trump majority, like Roe, is any serious engagement with the text of the Constitution and its history. The text of the Constitution gives Congress, not the Court, the power through legislation to create immunities for the Executive Branch. First, the Speech and Debate Clause creates constitutional immunities but only for the Legislative Branch. Second, the Necessary and Proper Clause empowers Congress to make “[a]ll Laws which shall be necessary and proper for carrying into Execution the foregoing [i.e., legislative] Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Emphasis added.) This gives Congress the power to legislate whatever immunities to ensure a bold and vigorous Executive Branch—which is part of the “Government of the United States”—that Congress sees fit. And Congress has created certain Executive Branch immunities, but never from federal criminal prosecution.
The Trump majority also ignored that the very Section of the Constitution that governs presidential elections—Section I of Article II—omits the President from any official role in determining the results. Those roles are given to the States, Congress, and (minimally) the Vice President. The Twelfth Amendment reiterates this omission of the President.
MORE at this virtual event Monday.