Trump v. United States and the Separation of Powers
173 University of Pennsylvania Law Review Online 33 (2025)
24 Pages Posted: 2 Aug 2024 Last revised: 14 Feb 2025
Date Written: July 22, 2024
Abstract
Trump v. United States is a blockbuster decision on many dimensions and has been reviled and celebrated by different quarters of American society. Instead of focusing on the decision’s political or policy implications, this Essay assesses what it portends for separation of powers theory more broadly. In brief, it argues that the majority’s opinion reveals fatal limitations in the dominant form of separation of powers analysis on the Supreme Court today, separation of powers formalism. Formalism has never constructed a method either to identify when disputes arise in areas of shared authority or to resolve those that do. This is a major problem, because essentially all disputes that arise today involve areas of shared authority. Criminal immunity provides one more such example.
The majority holds that the President has “absolute” immunity whenever exercising power in an areas of “exclusive” power, and “presumptive immunity” when exercising power in an area of “concurrent authority” with Congress. Being able to distinguish between areas of “exclusive” and “concurrent” authority thus proves critical. But the majority never explains how to do so. This Essay provides a way to coherently identify areas of exclusive and shared power, but this only reveals that criminal immunity issues will never arise in areas of exclusive, rather than shared, power. For criminal immunity to matter, Congress must have constitutional authority to criminalize certain conduct. If it does not have such power, then the criminal prohibition would be unconstitutional as applied to anyone, not just the President. Meanwhile, if the President’s exercise of power is an “official act,” then the President also has power to engage in the particular conduct. For criminal immunity to be necessary, then, we must be in an area where both Congress and the President have constitutional authority to act and come into conflict. The Court nonetheless labels certain areas of the President’s power “exclusive” and subject to absolute immunity. This label is the outcome of the majority’s choice to prioritize the President over Congress in an area of shared authority. Yet, at no point does the majority justify this choice by explaining why the President’s power ought to limit that of Congress in this area of shared authority, rather than the other way around. This is reflective of formalism’s longstanding inability to identify or resolve disputes in areas of overlapping power.
What is truly novel is that the conservative, formalist majority seems to concede this point when it addresses areas of “concurrent” authority explicitly. In such areas, the majority abandons categorical formalism entirely in favor of a form of noncategorical interest balancing to construct its “presumptive” immunity standard. Although this part of the opinion has been the subject of much criticism, it is to be commended. As I have argued elsewhere, interest balancing is, in fact, the best method for resolving separation of powers disputes of the prevailing alternatives. In sum, while the opinion is worthy of criticism in many respects, it also has the potential to point the way forward toward a productive future beyond formalism. We ought to embrace that.
Keywords: Constitutional Law, Presidential Power, Supreme Court, Immunity, Separation of Powers, Formalism, Functionalism, Interest Balancing, Presidential Immunity
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