The Imperial Presidency, with the Supreme Court’s Blessing, Has Gone Rogue

Donald Trump, as president, after losing the free and fair 2020 election, incited a mob to thwart usually pro forma congressional procedures to ratify the results in order to further his multi-pronged self-coup to remain illegally in office. Incredibly, with Trump now the favorite to win his 2024 bid to get back into office, the Supreme Court has handed down an irresponsible ruling that could turn an already imperial presidency into a rogue and corrupt office. The court ruled that presidents and former presidents should enjoy immunity from prosecution for “official acts” and, going even further, that such acts could not be used as evidence in criminal cases against such chief executives.

Contrary to the views of many conservatives—believers in a powerful “unitary executive theory” postulating that the president has absolute authority over the executive branch—the Constitution's framers did not intend to create three “co-equal” branches of government. Congress was meant to be the dominant branch, and the independent executive and federal judiciary acted as weaker constraining forces on that legislature. In fact, Congress, through legislation, created executive departments and agencies, established inferior courts under the Supreme Court, and governed their jurisdictions and budgets. 

In contrast to the fiction of a strict “separation of powers” doctrine, some important powers are shared between the branches: the president is the commander-in-chief of U.S. military forces. However, only Congress has the constitutional authority to declare war on a foreign country. The chief executive can negotiate a treaty with another nation, but to take effect, it needs a supermajority in the Senate. The president can nominate candidates to the cabinet, federal courts, and diplomatic posts, but he needs the “advice and consent” of the Senate. Finally, Article I of the Constitution (the framers put it first for a reason) gave Congress vastly more enumerated powers than the president in Article II. The Supreme Court, covered by Article III, was not explicitly granted constitutional review of the other two branches’ actions but merely appropriated this powerful role later and used it rarely until the twentieth century. 

The two most important presidential powers were to command the U.S. military on the battlefield and at sea after Congress had initiated hostilities with a foreign nation and to “take care that the laws be faithfully executed.”

However, over the course of the twentieth and twenty-first centuries, with their many wars and consequent economic crises, the presidency expanded its power greatly beyond what the framers had intended, morphing into the “imperial presidency” of the Cold War and the post-9/11 War on Terror. The expansion of executive power began in the national security realm with an unconstitutional widening of the commander-in-chief role and congressional abdication of its constitutional power to initiate conflict, resulting in a swarm of unilaterally declared wars. Few treaties are now negotiated because presidents prefer “executive agreements,” which require a lower threshold of congressional approval. This initial expansion of executive power in foreign affairs eventually migrated back home with the excessive use of unconstitutional executive orders to compensate for congressional inaction, such as President Joe Biden’s irresponsible forgiveness of federal student debt. 

Yet the Supreme Court’s ruling allows presidents and former presidents to get immunity for breaking criminal law as long as the violation was done as an “official act.” The lower federal courts will decide what is an official act and what is not—subject, of course, to further appellate and Supreme Court review. This ruling will create a legal morass for the legitimate attempts to hold Donald Trump accountable for inciting an insurrection in furtherance of a multi-pronged coup attempt on January 6, 2021. 

But it gets worse. Future presidents might feel free to commit flagrantly illegal acts, such as taking bribes or prosecuting, jailing, or assassinating political opponents—all under the color of official acts. For example, what if President Biden reacted to the high court’s ruling by declaring that “insurrectionist and coup-plotter” Trump was a danger to democracy and national security, could not now be realistically prosecuted for his crimes, and throw him in Guantanamo prison without trial (as George W. Bush did with terror suspects in the early 2000s). Under the guise of an official act to protect democracy and U.S. security, Biden likely could not be prosecuted for this gross injustice.

Furthermore, if one of the most important functions of the president under the Constitution is to see that the laws are faithfully executed, then he or she should under no circumstances violate them, even for official purposes. The main implication here is that he might need to do some dirty deeds to protect U.S. national security. Yet what would those be? Even covert dirty tricks abroad usually violate mainly foreign laws, but not U.S. statutes. Historically, the American government has taken harsh and counterproductive actions that inflame threats to national security (for example, illegal torture at Iraq’s Abu Ghraib prison and CIA “black sites” abroad). And, of course, if a legitimate anomaly arises under America’s traditional rule of law—that is, that no person, including the president, is above the law—Congress could just openly change the specific problematic statute. Thus, no blanket presidential immunity needs to be given by justices legislating from the bench. 

In short, the Supreme Court’s abominable ruling on presidential immunity gives the already overweening imperial presidency the potential to go rogue, especially with an unpunished “dictator for a day” (yeah, right) waiting in the wings to replicate his coup attempt or far worse.

Ivan R. Eland is a Senior Fellow at the Independent Institute and Director of the Independent Institute’s Center on Peace & Liberty. He is the author of War and the Rogue Presidency. He tweets at @Ivan_Eland.

Image: Steven Frame / Shutterstock.com.