Eurasia Press & News
How the Supreme Court Eliminated the Last Remaining Checks on Executive Power
This week in Milwaukee, Republicans have gathered to formally nominate Donald Trump for president—as they have twice before. But this time, they meet under vastly different circumstances. Most obviously, they are nominating the former president just five days after a man tried to assassinate him during a campaign rally. But they are also nominating Trump in the wake of two extraordinary legal developments. The more recent of the two is the dismissal of the classified documents case in Florida. The other, more enduring one is the Supreme Court’s ruling in Trump v. United States—which grants presidents sweeping immunity from criminal prosecution after leaving office.
In his majority opinion, Chief Justice John Roberts declared that presidents—and former President Trump in particular—have absolute immunity from criminal prosecution for their exercise of “core” executive powers. The court also granted ex-presidents presumptive immunity for actions at the “outer perimeter” of their responsibilities. They are not immune for their “unofficial” acts, but the opinion’s distinction between what is official and unofficial is so blurry that it may be meaningless. As Justice Sonia Sotomayor wrote in a bracing dissent, Trump v. United States makes the president “a king above the law.”
For Trump, the ruling brings immediate legal benefits—including further delaying proceedings related to the insurrection at the Capitol on January 6, 2021. It also helps explain why the classified documents case was dismissed. In a solo concurring opinion, Justice Clarence Thomas wrote that the U.S. attorney general’s appointment of Jack Smith as special counsel to prosecute the cases against Trump was unconstitutional, which is the reasoning Judge Aileen Cannon cited when throwing out the government’s indictment.
The long-term consequences of the immunity decision are even more alarming. The former president has repeatedly evoked the prospect of prosecuting his political opponents. If Trump returns to the presidency in January, he could certainly now order the Department of Justice to pursue his enemies, free from fear that he will be charged and tried for those actions after leaving office.
In the realm of national security and foreign policy, this ruling may seem less significant. As we wrote in Foreign Affairs in 2020, and as two of us (Goldgeier and Saunders) wrote in 2018, the president’s power over national security has been relentlessly increasing for decades. But the decision pushes that dynamic into overdrive. It injects confusion and uncertainty about when and how the few remaining constraints on the president could even operate. Trump, for example, has floated the idea of using military tribunals to take revenge on his enemies, such as Liz Cheney, the Republican former House member from Wyoming. Can he do so, citing his authority as commander in chief? The Court didn’t say, but its majority opinion did not rule out that prospect.
Now that the U.S. judicial system will struggle to hold presidents accountable for violating the law, it falls to Congress and the electorate to keep the executive in check. But Congress has become increasingly less engaged in overseeing the president’s conduct, particularly when it comes to foreign policy. This ruling will only make it easier for the White House to ignore congressional requests to testify or provide evidence. And the public rarely focuses on international affairs, a fact that a Supreme Court decision is unlikely to shift.
Allies and adversaries alike should now assume that U.S. presidents will never be held officially accountable for their actions, even through political processes such as congressional hearings or impeachments. The majority opinion has simply made the costs of enforcing these constraints too high—and the costs for presidents who circumvent them too insignificant.
THIN LINES
In its majority opinion, the Supreme Court divided presidential behavior into three different categories, each subject to a different standard of scrutiny. The first are so-called “core” official acts, or actions the president takes that are part of his central constitutional powers. These actions, according to the Court, are now entirely and indisputably immune from prosecution—no exceptions.
Such core powers include the ability to grant pardons or veto legislation. But the majority went a step farther, declaring that core powers extend to any domains over which a president has “conclusive and preclusive” authority. The Court singled out the president’s authority to oversee investigations by the Department of Justice as one such area, despite the fact that Congress has long exercised the authority to regulate the department. This means, in theory, that the president could order the department to launch specious prosecutions of his political opponents without ever facing judicial consequences. This segment of the majority opinion was a step too far even for Justice Amy Coney Barrett, a Trump-appointed conservative. In her separate partial concurrence, she argued that the majority had drawn the perimeter of what counts as “conclusive and preclusive” far too broadly.
The Court called the next category of presidential behavior the “outer perimeter” of his official, constitutional responsibilities. This includes giving speeches and conferring with the vice president. According to the court, these actions are presumed immune from prosecution. To secure a conviction, the government would have to show that the criminal prosecution of such acts would pose “no danger” of infringing on executive branch authority—an exceedingly difficult task. The Trump opinion likely puts challenges to all official acts out of reach.
The final category of acts are those deemed “nonofficial.” Here, presidents do not enjoy immunity. For example, suppose a president running for reelection ordered campaign staff to organize fraudulent slates of electors and send their votes to Congress for counting, after losing the Electoral College. In theory, the incumbent president would be vulnerable to criminal prosecution because the act is that of a candidate and not a president. But the line between official and nonofficial acts can be blurry. A president running for reelection might claim that a campaign decision was actually a governmental one. And the Supreme Court made it especially challenging to make that determination by blocking prosecutors from probing the president’s motives. Nor can prosecutors use evidence from official, immunized acts when prosecuting the executive for private ones. The president, for instance, might veto a bill after accepting a bribe—something that sure sounds like a nonofficial, criminal act. But prosecutors would not be able to introduce evidence at trial that the bribe was tied to vetoing the bill, because vetoes are a core presidential power.
The upshot of the court’s decision, then, is to make prosecuting a former president for any act carried out while in office practically impossible. Determined prosecutors could try. But the path to success is now so long and so winding that it is all but blocked.
ALL THAT POWER
Understandably, most of the analysis of Trump v. United States has been on its domestic implications. But the potential foreign policy ramifications are also significant. After all, most foreign policy decisions are official acts: part of the president’s core constitutional powers. The president may therefore be able to do whatever he wants internationally, even if it is blatantly illegal, without being prosecuted. He could, for example, use the military to take personal revenge, line his pockets, or commit war crimes. Just as a president might accept a bribe in exchange for vetoing a bill, he could also demand one for deciding where U.S. troops should be based overseas, invoking his authority as commander in chief.
In the logic of the Supreme Court’s conservative majority, foreclosing most post-presidential prosecution does not make the president less accountable but simply returns that power to Congress, which can now again play its rightful constitutional role as a check on the executive’s power. The majority seems to envision a world where through lawmaking, hearings, and impeachment, the House of Representatives and the Senate can rein in and, if necessary, penalize the president for his misbehavior.
Strictly speaking, the Court is correct: Congress can hold the president responsible for foreign policy errors and wrongdoing. Although the president is the commander in chief, the Constitution grants Congress the power to declare war. The president oversees the entire executive branch of government, but it is Congress, through its power of the purse, that funds the state—including the military and the executive branch’s foreign policy apparatus. And Congress can impeach and convict the president, removing him from office, for what the Constitution calls “high crimes and misdemeanors.”
But Congress has rarely checked the president’s international actions. Instead, over the last 60 years, the legislative branch has given—and presidents have grabbed—more and more authority over national security, creating what the historian Arthur Schlesinger, Jr., called an “imperial presidency.” Congress has granted the president the power to take the country to war in places such as Vietnam and Iraq with little oversight. When it takes the rare step of trying to restrict the president’s authority through efforts such as the War Powers Resolution of 1973 (passed after the Vietnam War), it has failed. Despite sincere, bipartisan attempts, Congress could not even muster the political effort to repeal or revise its 2001 Authorization for Use of Military Force—which greenlighted the war in Afghanistan and the global campaign against al Qaeda—even though four presidential administrations have used it to pursue operations that bear hardly any relationship to those initial missions.
NO CHECKS, NO BALANCES
The Supreme Court may hope that its decision will inspire the House and the Senate to be more aggressive in clawing back power. But this is extremely unlikely to happen. A general decline in legislative expertise and capacity has made it hard for Congress to scrutinize bad or dangerous policy, much less police the line between legal and illegal actions. What is more, polarization has diminished the incentives for members of the president’s political party to constrain the White House even when they know their leader is in the wrong. The opposition might want to do so, but polarization makes any attempt to stand up to the president seem reflexively partisan. That may not deter the opposition party from challenging the executive’s international decisions, but it would need to control both chambers of Congress to have any real bite. And the president could veto its bills unless they were passed by an overwhelming majority (which would require bipartisan support).
Even if partisanship were not a concern, lawmakers have little electoral incentive to rein in the president when it comes to foreign affairs. Giving the president a free hand internationally is generally popular, so legislators rarely want to bear the political costs of standing in the executive’s way. Take the 2001 Authorization for Use of Military Force. Despite a long-standing bipartisan view that the act is outdated and should be repealed, lawmakers face high hurdles to doing so. Few in Congress want to remove a power from the president only to be blamed later if the White House needs to act quickly (for example, if terrorists were to attack the United States again). Replacing the law would get around that problem, but then members would need to hash out the details of a new measure—always a difficult lift. Little wonder, then, that few members of Congress want to expend political capital on this issue.
Legislating, of course, is not the only way to hold presidents accountable for foreign policy misdeeds. Representatives can hold hearings to investigate such failures. Sustained congressional hearings can highlight issues for the public, as seen during the Vietnam War and more recently with the House’s January 6 investigation. But today’s hearings typically do little to pressure the president to change course: intense partisanship within and beyond Capitol Hill means that lawmakers and their voters interpret hearings through a partisan team lens, limiting their broader reach and effect.
The decision will have a lasting effect on how other countries think about Washington.
For gross foreign policy misconduct, legislators could try impeaching the president. But the impeachment process also rarely leads to accountability or policy shifts. In 2019, the Democratic-controlled House impeached Trump for abuse of power after he sought to condition military aid for Ukraine on Kyiv’s willingness to investigate his likely opponent in the 2020 presidential election, Joe Biden. But the impeachment did not change Trump’s behavior, and the Republican-led Senate later acquitted him at trial. Only one Republican, Mitt Romney of Utah, voted to convict him, and on only one of two counts.
Far from returning power to Congress, the Supreme Court ruling will likely have a chilling effect on Congress’s already weak drive to wield constraints. The ruling applies to prosecuting presidents after they leave office. But it still confers legitimacy on presidential claims of absolute authority and immunity for their official acts. That will inevitably lower the costs for presidents to successfully press such claims—and so members of Congress will have to think even harder about whether they can shoulder the increased political burden of trying to rein in the president.
Perhaps voters, rather than Congress, can be counted on to penalize presidents for their foreign policy failures or misdeeds. After all, opposition to the Iraq war helped facilitate Barack Obama’s victory in 2008. But voters typically do not pay much attention to the day-to-day management of foreign policy or make decisions around it. Even when those gears start to turn, they are very slow. Public protests did little to stop the Iraq war, and President George W. Bush won reelection in 2004 even though the situation in Iraq had deteriorated catastrophically. It was not until the Democratic Party made Iraq a prominent issue in the 2006 midterms that voters delivered a clear electoral message.
TRUST ISSUES
Right now, analysts are thinking mostly about how the Supreme Court’s ruling will shape Trump’s future decisions if he wins in 2024. But the decision will apply to all future presidents and therefore have a lasting effect on how other countries think about Washington. Allies and adversaries must now assume that all presidents have the potential to act untrammeled because they are completely unaccountable.
Consider, for example, the now dismissed Trump classified documents case. It matters to allies and partners how presidents treat classified communications and information: Ukrainian President Volodymyr Zelensky, for example, was unhappy that Trump made the record of their 2019 phone conversation public two months later. U.S. partners were thus already uncomfortable that presidents could declassify documents at will while in office. But now, U.S. presidents may have the power to take classified documents with them when they leave, possibly for nefarious purposes. This possibility could prompt allies to withhold intelligence.
Presumably, not every president will abuse the immunity protections the Supreme Court justices provided in their decision. After the ruling, Biden declared that he knows and “will respect the limits of presidential power.” He well might. But other countries trust or fear democracies precisely because the rule of law keeps policy within certain bounds, regardless of who holds executive power. Relying on the forbearance of one individual leader is no way to run a credible, sound foreign policy—or a democratic government.
