Trump v. United States and the Limits of Separation of Powers Formalism

The Supreme Court’s decision in Trump v. United States was perhaps the most controversial decision of the past year. The landmark decision will no doubt have significant political and policy consequences in the days, months, and years to come. Scholars and policymakers alike have already begun to dissect these implications—this piece does not aim to do that. Instead it focuses on another major aspect of the Supreme Court’s ruling that has been relatively underexplored, which is its potential ramifications for separation of powers theory more broadly. The majority’s opinion in Trump v. United States reveals fatal limitations of the current conservative Supreme Court majority’s standard form of analysis of separation of powers—known as separation of powers formalism. 

As I argue in a recently published article, separation of powers formalism has never known how to deal with issues that arise in areas of overlapping authority between the branches. Because presidential criminal immunity issues will always arise in such areas of overlapping power, the majority’s decision in Trump v. United States proves fundamentally arbitrary. It fails to provide any reasoned grounds to decide future cases, and its inability to realize its own limits ought to be the final nail in the coffin of separation of powers formalism. 

As it is conventionally understood today, separation of powers formalism is a method of constitutional interpretation that seeks to resolve disputes between Congress and the president using rules, rather than standards, that are derived from the original meaning of the Constitution. This is the method preferred by most conservatives on the Supreme Court, and it has a surface-level appeal. If the Constitution divides up powers between the branches—as the “separation” in the “separation of powers” suggests—then one simply needs to determine which branch has power over the relevant matter, and that branch should prevail. 

This method works fine in some straightforward cases. For example, if Congress tried to pardon an individual, one could say such power is granted exclusively to the president, not Congress, and so Congress cannot do that. Similarly, if the president tried to impeach a Supreme Court justice, one could say such power is granted exclusively to Congress, not the president, and so the president cannot do that. 

The problem is that the separation of powers disputes that arise today do not involve such straightforward cases. This is because the Constitution does not, infact, fully divide up all the powers granted to the branches. Instead, as formalists acknowledge, some powers that Congress and the president possess overlap—they are shared or “concurrent.” 

For example, as Justice Neil Gorsuch stated recently in his Gundy v. United States dissent, “While the Constitution vests all federal legislative power in Congress alone, Congress’s legislative authority sometimes overlaps with authority the Constitution separately vests in another branch.” Or, as Gary Lawson, one of the most prominent formalist academics, has noted, 

The formalist method is concededly easier to describe than to apply, because not all governmental activities are associated with only one particular institution. For example, Congress can resolve disputes concerning government contracts by passing private bills or by entrusting the dispute resolution to courts. The activity can thus be either legislative or judicial, depending upon which institution performs it.

In short, formalist scholars and justices agree that the Constitution divides up some powers between the branches, but that other powers are shared to some extent. The problem for the formalist method is that it has no method to resolve disputes that arise in the areas of shared authority. This is because all the Constitution says in such areas is that both branches have power to act. It provides no method of prioritization that denotes which branch should prevail when the branches come into conflict in these areas of shared authority. This was candidly acknowledged by Justice Clarence Thomas—arguably the most committed formalist on the Court—in his concurrence in Zivotofsky v. Kerry, when he stated that how “the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution” is a “difficult separation-of-powers question” that “I need not opine on.”

The lack of prioritization mechanism in the separation of powers contrasts with other domains of constitutional law, where there are settled prioritization schemes for areas of shared authority. For example, when the federal government and the states come into conflict in areas of shared authority, it is accepted that, generally speaking, the federal government prevails, rather than the states. This is the lesson of the Supremacy Clause. Similarly, when the government comes into conflict with individual rights provisions, by default, the individual right prevails over the government’s authority. That is the lesson of tiers of scrutiny and the like—the individual wins unless the government can show a sufficiently strong interest in infringing on the individual’s right.

In the separation of powers, however, when the branches come into conflict in an area of overlapping authority, there is no rule of prioritization for which branch should prevail, even presumptively. In other words, no one knows whether the president’s power should limit that of Congress or whether Congress’s power should limit that of the president. This is no small matter, given that, as I have argued elsewhere, essentially all disputes that arise today—including those relating to for-cause removal restrictions, foreign state recognition, the conduct of diplomacy, and executive privilege—arise in such areas of overlapping power. 

Enter Trump v. United States. The case was the first time the Supreme Court confronted the question of whether the president has immunity from criminal prosecution. As Lawfare readers are likely aware, the Court held essentially that the president can engage in three forms of conduct with varying levels of immunity: 

• When engaging in an “official act” as part of the exercise of an “exclusive” or “core” power, the president’s immunity is “absolute.” 
• When engaging in an “official act” as part of the exercise of “concurrent” power with Congress, the president’s immunity is “presumptive,” such that criminal liability can attach if it would “pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” 
• When engaging in an “unofficial act,” the president has no criminal immunity at all.

Under this scheme, the differentiation between “exclusive” and “concurrent” authority proves crucial, as one set of conduct gives the president absolute immunity and the other gives the president only “presumptive” immunity. So how is one to tell when an exercise of power is “exclusive” rather than “concurrent”? Remarkably, the Court provides no guidance on this front. 

The reason for this lacuna is that the Court does not have a clear method of identifying areas of exclusive powers. This becomes clear once one recognizes that, despite the Court’s conclusion otherwise, presidential criminal immunity issues will never arise in areas of exclusive, rather than shared, power. I expand on why this is so in “Trump v. United States and the Separation of Powers,” forthcoming in the University of Pennsylvania Law Review Online, but it is surprisingly simple to explain. 

For criminal immunity issues to matter, two things need to be true: (1) Congress must have criminalized particular conduct, and (2) the president must have allegedly engaged in such conduct as part of an “official act.” 

In any such instance, both branches have constitutional power to act. Congress must have constitutional authority to criminalize the conduct; otherwise, the prohibition would be unconstitutional as applied to anyone, not just the president. And the president must have constitutional authority to engage in the conduct; otherwise, it would not be an “official act.” 

This is thus a situation where both branches have constitutional power to act and have come into conflict.It is a dispute that arises in an area of overlapping power. 

The Court, nonetheless, deems some areas of power “exclusive”—for example, those relating to the president’s communication with executive branch officials regarding potential investigations and prosecutions, the pardon power, and the recognition power—and concludes that the president’s exercise of such powers limits whatever power Congress otherwise has to criminalize conduct. But the Court never explains why it ought not resolve the case in the other direction. The Court could just as easily have said that Congress’s power to criminalize conduct limits whatever power the president otherwise has to engage in the “official act.” 

This dispute arises in an area where both branches have power and thus the Court needs some reason to choose one branch over the other. But the majority never provides one. Its decision to prioritize the president’s power over that of Congress is never justified. It calls the president’s power “exclusive,” but this label is the outcome of the Court’s choice to prioritize the president over Congress; it is not a reason for that choice. What we are left with, then, is a case of ipse dixit: The president prevails, because the president prevails.

To be clear, the Court’s failure on this front is not a one-off event. In some ways, Trump v. United States is groundbreaking. It is the first Supreme Court decision to conclude that the president has immunity from criminal liability. In other ways, however, it is part of a long pattern. That pattern is the failure of separation of powers formalism to resolve disputes that arise in areas of overlapping power in a principled or reasoned manner. The Court—and formalist scholars alike—have frequently found themselves having to resolve disputes in areas of overlapping power by choosing that one branch (typically the president) ought to prevail over the other (typically Congress) by fiat. This has been true, for example, in the context of for-cause removal debates, as well as debates over recognition, foreign affairs, military affairs, and more. The reason is endemic to the method—because separation of powers formalism has no coherent method to resolve disputes in areas of overlapping power, the results of such cases prove arbitrary.

Although I have been quite critical of the Court’s opinion in this piece, perhaps something positive can come out of this case. In analyzing areas of “concurrent” authority, the Court adopts an interest balancing analysis to construct its presumptive immunity standard. As I have argued previously, this mode of analysis—which asks whether one branch’s conduct has infringed on the exercise of power of another and, if so, whether such exercise of power is justified by a sufficiently strong interest—is the best method of resolving separation of powers disputes in areas of overlapping power that we have constructed to date. 

This is not to say that I agree with how the Court went about balancing the relevant interests. To the contrary, as I explain in my forthcoming essay on Trump v. United States—I disagree with how the Court went about balancing the relevant interests. But such disagreement is routine in constitutional adjudication. And I think such disagreement—over how to weigh interests in a particular case—is preferable to disagreeing about a rule that governs all future cases to come. This is particularly so when the rule, like the absolute immunity ruling discussed above, is fundamentally arbitrary in its scope. Although interest balancing as a mode of analysis surely has flaws, it at least makes explicit what the disagreement is about, that is, how much of an intrusion on one branch’s power is at stake and whether such intrusion can be justified by the strength of the reasons for the other branch’s actions. In contrast, the formalist method that the Court uses in its exclusive powers holding prioritizes one branch over the other on the basis of judicial decree. Left unexplained—to this day—is why the Court assumed that the president’s constitutional power ought to trump Congress’s in this area of shared power.

I do not believe that the Supreme Court has an answer to why this should be so. This is because its ostensible method—of resolving disputes using rules derived from the original meaning of the Constitution—is not up to the task of resolving such hard cases. Given that these are the hard cases that formalism is tasked with resolving, this limitation ought to be fatal. It is time to abandon the method. And perhaps the egregiousness of the errors in the Court’s reasoning in Trump v. United States might provide the impetus to do so. 

On this front, however, I will not hold my breath.