Presidential Immunity and Democratic Disorder

9 Pages Posted: 18 Jul 2024

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: July 16, 2024

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.

Keywords: immunity, Trump, separation of powers

Suggested Citation

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

Cass R. Sunstein (Contact Author)

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Harvard University - Harvard Kennedy School (HKS) ( email )

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