Presidency Exceptionalism

Abstract

Trump v. United States, which declared the President to be immune from prosecution for any act performed in the course of exercising their “exclusive” constitutional powers, elicited horror among many in the legal community. And for good reason. The parade of horribles imagined by the dissenting justices and by commentators writing in the decision’s wake is unfortunately not fanciful. The Court’s opinion is not only normatively unappealing but also little grounded in the text or structure of the Constitution. Yet the decision is perhaps more important for what is unexceptional about it than for what is aberrant. Trump v. United States provides a powerful vehicle for exposing the presidency exceptionalism that already ran throughout our law and the regnant ideology of the separation of powers. Our law frequently immunizes the President from the coverage of ordinary laws; it typically declines to apply ordinary principles of legal interpretation in determining the scope of presidential authority; and it habitually treats the President—in both letter and spirit—as being outside the reach of statutory law. If the President is above the law, it is not a consequence of Trump v. United States but of our legal culture.

The thrust of much of U.S. separation of powers doctrine is the importance of a presidential counterweight to the legislature. This conception of the separation of powers identifies the essence of separation of powers with presidentialism, the independent prestige of the chief executive. But the separation of powers does not necessitate the creation of a strong chief executive, much less a chief executive emancipated from congressional control. Indeed, the hallmark of separation of powers systems—in contrast to their parliamentary counterparts—is that the legislature exercises its control over the executive through the production of law rather than through a political confidence procedure. The subjection of the President to law is the hallmark of the separation of powers, not a threat to it. Moreover, legislative prestige is the vital counterweight to the omnipresent risk of presidential aggrandizement in separation of powers systems. Sapping congressional power and prestige, by contrast, dooms the rule of law. Subordinating the President to law means subordinating the President to Congress, and this is what a genuine respect for the separation of powers would require.

Keywords: presidency, presidential power, presidentialism, separation of powers, formalism, unitary executive theory, presidential immunity, Trump v. United States, Nixon v. Fitzgerald, Franklin v. Massachusetts