Justice Robert Jackson’s concurrence in the landmark Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer is a model for teaching—and applying—structural argument. The power of its analysis has completely displaced the majority opinion as the applicable precedent. It is not surprising then that when the Supreme Court faced a similarly historic decision about the scope of executive authority in 2024, it would look to Youngstown as a model.
The case was Trump v. United States, a criminal prosecution arising from the former president’s efforts to overturn the results of the 2020 presidential election, and the issue was the scope of presidential immunity for official acts. At oral argument it was openly recognized the justice would be writing an opinion “for the Ages,” and this momentousness doubtless drove the Court to look at Youngstown for guidelines in defining the limits of presidential power. As the majority opinion by the chief justice concluded:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown, 343 U. S., at 634 (Jackson, J., concurring).
The Court ultimately held that a former president is entitled to immunity from criminal prosecution in some circumstances. The Court’s opinion was met by widespread criticism on the ground that it effectively removed the president from any criminal accountability upon leaving office for abuses of office committed during his term. As a columnist for the Washington Post put it, “The Supreme Court has just ruled that the president is, in fact, above the law.”
Like the Jackson opinion in Youngstown, the chief justice’s opinion in Trump sets up a three-part test based on the relationship of the president’s authorities to those powers given other actors in the constitutional structure. Thus, if the president’s allegedly criminal acts were conducted within the scope of his “core” powers of decision, they are shielded from prosecution by “absolute immunity.” That is because the president is the ultimate decider regarding choices within the executive branch and the executive is an independent, coequal branch of the federal government. Core powers are those decisions that the president and the president alone can take. Directing DOJ investigations and prosecutions is the sole prerogative of the president who is, despite acres of nonsense to the contrary, the chief law enforcement officer of the United States. Giving such directions thus calls forth his immunity at its zenith.
It is therefore implied that other presidential actions solely within his constitutional discretion – – pardons, appointment and removal of executive branch officials, the recognition of foreign states, a presidential veto, and tactical decisions taken as commander-in-chief – – would be entitled to a similar iron dome (though the latter is not mentioned by the majority).
When the president’s actions involve shared powers with another branch or officers of another branch, however, this complete immunity gives way to the rebuttable “presumption of immunity.” Because, for example, the vice president is also a legislative officer – – he presides over the Senate – – the president’s alleged efforts to suborn his vice president by persuading – – or threatening – – him in order to affect the rejection of the legitimate electoral votes of the states fall within the second category. On this reading, courts would be compelled to accept this domain of presumptive immunity, and not collapse it into absolute immunity in the future.
In other words, if the president was acting in his own exclusive domain, he cannot be held to account whether his directions to his subordinates were genuine efforts to assure electoral integrity by following up on leads he had been given or were illicit efforts to muddy the waters by pretending to investigate incidents as to which there was no factual basis for concern. The importance of allowing the president free reign to pursue his policies in the realm of his exclusive authority overrides any attempt to second guess him in a prosecution. This is confirmed by the structure of executive independence.[1]
This structural argument may be parsed:
- The president is the person in whom executive power is wholly and singularly vested.
- There must be some duties as to which he could act entirely at his discretion or the executive power would not be wholly vested in him—he would be the creature of other branches.
- Control over the actions of subordinate departments must be one of these duties, whatever else there may be, because his decisions would fall stillborn if he could not direct executive officials.
- It is reasonable to conclude that whatever other discretionary powers are wholly vested in the president, his control over investigations and prosecutions is one such “core” responsibility.
By contrast, the president has only a participatory role rather than a controlling one vis-à-vis an executive official who also fulfills legislative (or judicial) functions. The vice president is one such hybrid officer; perhaps officers of an independent agency (e.g., the SEC] are another or the members of a presidential commission authorized by Congress are others. Here the president is entitled to a presumption of immunity based on the assumption that he is exercising powers delegated to him by the Congress or by the constitution in concert with the Congress or the judiciary. Then a showing of bad faith – – the intent to commit a crime – – would pierce this presumption. This can be fairly inferred from the majority’s test to rebut the presumption of immunity (viz, that prosecution of the former president’s alleged conduct would not “pose any dangers of intrusion on the authority and functions of the Executive Branch” because this authority is not exclusive).
This is in perfect accord with Jackson’s structural framework in Youngstown (pp. 277-281):
- The Constitution provides for an Executive power;
- It contemplates that practice will integrate the dispersed powers of government into a workable set of relationships;
- Thus the President’s authority is at its zenith when Congress has authorized his acts; his authority is less when he must rely on whatever inherent power he possesses concurrently with the Congress and Congress has not spoken on the matter at hand; his authority is least when he must claim that it is exclusive because Congress has acted contrary to his own acts.
- On this basis, Jackson concludes that, because the Congress has explicitly refused to provide the power exercised here, the President must demonstrate that his power is both inherent and preclusive.[2]
When the president’s acts engage state officials or private parties, a factual finding must be made as to whether these acts were official or nonofficial. Was the president carrying out his official duties when he threatened to prosecute state officials unless they found evidence of voter fraud, because he wished to incentivize them in order to keep federal elections beyond reproach, or because he was trying to reclaim an election he knew he had legitimately lost and thus was acting in his personal capacity as a candidate?
As the Court writes,
Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.
I think there is no warrant for the conclusion that, as another Washington Post columnist put it, “[t]his outrageous abuse of power and blatant partisan favoritism should be evidence, if any more were needed, that this court has lost all legitimacy,” or the dissent’s claim that if the president “orders the Navy’s Seal Team 6 to assassinate a political rival [he is]Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Explaining why these reactions are misplaced, however, takes a bit more explication than the majority’s dismissive remark that it,
strikes a tone of chilling doom that is wholly disproportionate to what the Court actually does today. … Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
This is fine as far as it goes, but it would have been helpful if the Court had explicitly acknowledged that the “basic structure of the Constitution” puts the State under law. There can be no power—exclusive or otherwise—to violate the constitution or laws that are validly adopted. The question rather becomes: to what extent can such violations be prosecuted?
For example, the pardon power is completely vested in the president; he is immune from any inquiry – – excepting impeachment – – as to the appropriateness of his decisions. Moreover, should damaging information come to light about his motives in a particular pardon, the pardon could not be rescinded. That said, if there were evidence that the pardon was part of an agreement that the recipient lie to protect the president about a collateral criminal matter, the president could not be said to be acting within his exclusive authority. There is no authority to suborn perjury, obstruct justice, or sell pardons. Similarly, there is little doubt that the president’s role as commander-in-chief of the armed forces generally gives him the power to direct their tactical operations. But it is well-settled that an officer or enlisted personnel can, or indeed must, refuse to obey an unlawful order, e.g, an order to commit an act that would be a war crime.[3] By definition, an illicit act is ultra vires and not within the power of a State under law.
This is analogous to the approach applied in Ex Parte Young. This foundational case in federal courts classes holds that if state officials attempt to enforce an allegedly unconstitutional law, sovereign immunity will not protect them from lawsuits seeking to enjoin their acts. The operative legal fiction is that officials cannot be exercising lawful authority—and thus are not protected by the otherwise “complete immunity” of the state’s sovereign immunity—if their acts violate the constitution.
This point has been obscured by the Court’s focus on protecting the president from harassment. Thus in a much misconstrued passage, the chief justice writes,
In dividing official from unofficial conduct, courts may not inquire into the president’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.
This language has been read to mean that even if the president’s act would otherwise be illegal, that cannot be the test for deciding whether the act is official or private. But that is not what the Court says here. The president’s motives may not be parsed in making such a determination but there are acts that—whatever their motivation—are clearly ultra vires and thus cannot be deemed official.
For example, it may well be that the president who orders the military to arrest members of Congress to halt an impeachment is acting from the conviction that only his intervention will prevent a gross miscarriage of justice; or the president who urges a foreign head of state to make a financial deal with a member of the president’s family is motivated by trying to strengthen ties between a monarch and the United States and not by greed. The allegation of a criminal motivation is not the trigger that sets off an investigation; rather it is the prima facie evidence of a constitutional crime whatever the president’s sincere beliefs may have been. The Court seeks to protect the president from judicial examination on the basis of a mere allegation of ordinary criminality—and nothing more. Indeed, a US court could not rule that an unconstitutional act by an official was constitutionally protected from prosecution; there was no lawful authority for that act in the first place.
Here, again, the analogical relevance of the jurisprudence around Ex Parte Young— which does not do away with immunities—can be seen. Last year the Fifth Circuit held that despite a finding that a police officer had used excessive force when ordering a police dog to attack a suicidal member of the public, the policeman was still entitled to immunity from suit because the unconstitutionality of the police action was not “beyond debate.” In the ensuing doctrinal development around Trump, the question of what constitutes a constitutional crime by the president will be important, but as we shall see below, we already have considerable guidance on this issue from the Constitution itself.
“The Supreme Court, in Trump, provides the basis for … a prudential approach going forward.”
The impelling force of the majority opinion is the effort to assure any incumbent president the freedom of action to carry out his duties without concern that he will be prosecuted for doing so once he leaves office. This laudable purpose can insulate him from prosecution for official acts such as directing action by subordinates; but acts such as ordering the assassination of a political rival or organizing a military coup can never be “official acts”—just as the acts of state officials in Ex Parte Young cannot be official acts of the state—because there is no constitutional authority for them. In our system, an “official act”—an act of office—cannot be premised on the exercise of an unconstitutional power. Attempting to destroy the constitutional structure by violence can never be an official act and thus cannot be shielded by the complete immunity that would otherwise operate with respect to other controversial but not clearly illicit actions by the president.
The difficulty, as the majority clearly perceives, is that Congress might use its legislative powers to infringe on the executive’s essential prerogatives on the grounds that a statutory provision forbids acts deemed unconstitutional by the Congress. Congress might be tempted to control the presidency by criminalizing presidential acts—and thus, it may be thought, the Ex Parte Young move that overrides sovereign immunity should not be thought available.
The structural answer—for this element of Trump is, at bottom, a structural problem—is to focus on the essential character of a constitutional crime, using the Constitution’s language rather than a congressional statute’s to determine the scope of necessarily unofficial acts. These standards are available in the language of the impeachment clause that tells us what constitute constitutional crimes.
“Treason, bribery and other high crimes and misdemeanors” (emphasis supplied) determine what presidential acts are necessarily ultra vires and thus cannot be protected by complete immunity because this language defines precisely what is a constitutional rather than statutory crime. This then fits nicely with the language of Article I, sec. 3, that a “party convicted [by the standards of the impeachment clause] shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to Law.” Otherwise, a former president who has been removed from office through impeachment could invoke Trump v. United States to impede his prosecution for the very acts for which the Senate has convicted him despite the language of Article I.
This gloss on Trump v. United States may not have been thought necessary by the Court, which clearly believed such questions should be thrashed out at lower levels before receiving a definitive expression by the Supreme Court. But one wonders if the majority was unprepared for the mania that greeted their decision in the case and that might have been dispelled by a more thorough and encompassing opinion.
A head-spinning example of this mania, was the widespread claim that the decision was a “Trump-friendly” holding by his appointees and other justices named by Republican presidents. Virtually none of the commentators following the oral argument picked up on Justice Alito’s hypothetical:
What if an incumbent president “loses a very close, hotly contested election? [He] couldn’t then go off into a peaceful retirement [because a vindictive incumbent chose to pursue him] if he didn’t have immunity…Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?….
What Justice Alito was asking the advocates—and the public—to consider was what the law should be if Donald Trump—who had repeatedly threatened to “go after the Biden crime family”—were elected. It is bizarre that no one at the time of the oral argument appeared to take this on board and Alito was absurdly cast as a Trump defender. The majority opinion made its concerns even more plain in explaining, “The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors.”
One virtue of the supplementary analysis I have suggested is that it provides a lucid check on attempted recriminations by a subsequent president against his predecessor: the legal standards of impeachment—the requirement of a constitutional crime[4]—are a high and well-burnished bar. Such a rule is not inconsistent with the Court’s more general observation: “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law,” and does not contradict the general rule that official immunity sometimes shields unlawful actions as long as the violation wasn’t “clear.”[5]
The problem with the opinion as it stands is that Trump is not simply a structural case[6] and thus Youngstown is not the best template for analysis. The possible criminality of Trump’s efforts were not a matter of his encroachment on another branch’s prerogatives—his conspiracy to overturn the electoral results encompassed far more than his efforts to frustrate the procedures of counting the electors. Had his efforts been so limited, that case—the effort to undermine the role of Congress and the president of the Senate to certify electors—would indeed have been a Youngstown scenario.
The issue in Trump v. United States, however, turned on the prudential necessities of executive authority that were repeatedly stressed in the majority opinion.
The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” (citations omitted)
If, as I have argued,[7] the reflections of the framers and other observations from the past can be effectively used outside the narrow frame of historical argument per se, the prudential nature of the quoted words should not confuse us. Moreover, prudential imperatives are often invoked both in historical arguments[8] and doctrinal arguments.[9] Where the distinction matters is in cases of first impression like this one. Then the power of historical argument is at its weakest – – we would not want the ratifiers’ original conception of global warfare as a series of naval engagements to govern our construction of the president’s war powers – – and, by definition, doctrine and precedent. A case of “first impression” is, by definition, unprecedented.
The problem is a prudential one, as evidenced, not contradicted, by the Court’s reference to our founding history:
In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227.
In many respects, the tests on remand to the district court would be the same whether a structural or a prudential rationale were employed: if the alleged act by the president can fairly be said, presuming good faith, to be an example integral to those official duties that are committed to him alone by the Constitution, he enjoys immunity from subsequent indictment. But there can never be valid constitutional authority to orchestrating a constitutional crime—an offense that would be a valid predicate for impeachment. He may appoint whom he chooses, but he cannot accept a bribe for doing so; he may make peace overtures to a foreign state with whom the United States is at war but he may not do so acting as an agent for that state, betraying his own country; he may extract a promise from a foreign state to pursue the harassment of his political adversaries but not by impounded congressionally authorized funds; he may pardon any offender he pleases, but it is a constitutional offense to use the pardon power to entice an informant to remain silent in order to obstruct an investigation into the president’s own criminality.
Such a prudential analysis would respond to Justice Ketanji Brown Jackson’s cogent complaint that the majority in Trump simply does not provide a rationale sufficient to guide the lower courts – – or future presidents – – “ex ante.” The prudential approach would provide protection for the president that should be clearly perceived as consistent with our historic commitment to put the State under law, and it would ring fence a subsequent president from turning the powers of the U.S. government on his predecessor as Donald Trump repeatedly threatened to do in the 2024 presidential campaign. The Supreme Court, in Trump, provides the basis for such a prudential approach going forward.
– – – – – – – –
[1] Note that the court’s rejection of the use, by prosecutors, of official acts as indicative of motive [Trump v. United States; p. 18] does not apply to members of Congress (See, e.g., Sen. Menendez prosecutions) or to state executives (see e.g., McDonnell v. United States, 579 U.S. 550 (2016)).
[2] See P. Bobbitt, “Youngstown: Pages from the Book of Disquietude,” 19 Const. Comment. 3 (2002).
[3] J. Ford, “When Can A Soldier Disobey an Order?” War on the Rocks, 24 July 2017.
[4] C. L. Black, Jr. and P. C. Bobbitt, Impeachment: A Handbook at 110 (2018).
[5] My thanks to Tom Schmidt for making this salient point.
[6] The majority opinion reasons that “under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office….[W]e must not confuse ‘the issue of a power’s validity with the cause it is invoke to promote,’ but must instead focus on the ‘enduring consequences upon the balanced power structure of our Republic” (citing Youngstown).
[7] See generally Philip Bobbitt, Constitutional Fate (1982); compare Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (2024).
[8] The purpose of a “vigorous” and “energetic” Executive was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Federalist #70 (Hamilton).
[9] “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Jackson, dissenting in Terminiello v. City of Chicago (1949).