Power and Immunity in Youngstown and Trump v. United States

Introduction

When the Supreme Court handed down its decision in Trump v. United States granting ex-presidents a broad new immunity from criminal prosecution,¹ it ensured that President Donald Trump would likely never face criminal accountability for his efforts to remain in office following his loss of the 2020 election. But far more important than the short-term effects on Donald Trump’s legal prospects were the opinion’s implications for presidential power, the separation of powers, and the rule of law more broadly.

When Trump first raised the argument that he was absolutely immune from criminal prosecution for everything he had done as president, many people believed the argument lacked merit to the point of frivolousness.² The district court and a unanimous panel of the D.C. Circuit seemed to agree, with the district court explaining that Trump’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”³ In case there was any doubt, the court continued, “‘No man in this country,’ not even the former President, ‘is so high that he is above the law.’”⁴

The D.C. Circuit agreed.⁵ But on July 1, 2024, the Supreme Court, after slow-walking the case for months, held for the first time in history that ex-presidents are immune from prosecution for actions they take in their official capacities, even if those actions violate the law.⁶ As to some presidential acts, the Court announced an absolute immunity; the Court explained that this “absolute immunity” extended to “the President’s exercise of his core constitutional powers.”⁷ As to everything outside of the president’s “exclusive” and “preclusive” authority⁸ but still within the scope of the president’s official duties, the Court explained that the president was at least presumptively immune from prosecution, with the burden on the prosecutor to overcome that presumptive immunity by showing that the prosecution would pose “no dangers of intrusion on the authority and functions of the Executive Branch.”⁹ This presumptive immunity “extend[ed] to the ‘outer perimeter’ of the President’s official responsibilities,” encompassing anything “not manifestly or palpably be­yond [his] authority.”¹⁰ The Court held that this presumptive immunity was a minimum; the Court did not rule out the possibility that the proper form of immunity for all official acts was absolute, rather than presumptive.¹¹

The Court did allow that ex-presidents could be prosecuted for “unofficial acts”—although this final aspect of the opinion hardly rendered it a compromise, since no one, including Trump, was arguing that unofficial acts were immune.¹² The Court was also conspicuously silent on what sorts of presidential acts would properly be deemed unofficial, but the signals it sent suggested the list was likely short.

Chief Justice John Roberts’s opinion for the Court defended this tripartite scheme (absolute immunity for core presidential acts; presumptive immunity for other official acts; no immunity for private or unofficial acts) as largely flowing from another judicial opinion featuring a tripartite scheme—Justice Robert Jackson’s famous concurring opinion in the 1952 “steel seizure” case Youngstown Sheet & Tube Co. v. Sawyer.¹³

Justice Jackson and his famous Youngstown concurrence loomed large in Roberts’s majority opinion granting ex-presidents broad immunity from criminal prosecution. Indeed, Roberts cited Youngstown no less than a dozen times, casting his immunity opinion as a faithful application of much of Jackson’s logic.¹⁴ But as this Essay will show, a close examination of the ways Roberts invoked Jackson reveals a cynical and disingenuous reliance on Jackson’s famous opinion—one that in fact inverted its core premises. The Essay will also argue, however, that although the opinion’s application of Jackson’s concurrence to presidential immunity badly misapprehends the concurrence, it appears to leave intact the positions of both the Youngstown majority and the Jackson concurrence on the sources of presidential power. In a moment in which the executive has sought to slip the bonds of any meaningful constraints on presidential power, this enduring aspect of the opinion is critically important.

I. Trump’s Constitutional Reasoning

Before turning squarely to Youngstown, this Essay will first briefly offer some general critiques of the opinion in Trump v. United States. It will then turn to the opinion’s treatment of Youngstown. Finally, it will assess the implications of Trump v. United States for the current status of the storied opinions in Youngstown, and for presidential power.

Whether we assess the opinion in Trump v. United States from the perspective of engagement with the Constitution’s text; fidelity to history; compatibility with basic constitutional structure, in which limitation on power is a driving principle; or respect for the settled understandings of not just courts but presidents, Congress, and the public—the Chief Justice’s opinion announcing a sweeping new immunity for ex-presidents fails badly.

First, when it comes to text, not only is there no immunity for presidents or ex-presidents in the Constitution, but the textual clues that do exist cut directly against the Court’s conclusion that ex-presidents enjoy sweeping immunity. The president is clearly subject to impeachment—indeed, the president is the first official listed in the Constitution as subject to impeachment.¹⁵ The Constitution even singles out presidential impeachments as subject to special treatment, in that the Chief Justice presides at the trial of a president who has been impeached.¹⁶ The impeachment judgment clause limits the punishment for impeachment to removal and disqualification, but also adds that impeached individuals are “liable and subject to [i]ndictment, [t]rial, [j]udgment, and [p]unishment, according to [l]aw.”¹⁷ Put differently, that provision makes clear that impeachment does not preclude criminal prosecution.¹⁸ The natural way to read those clauses together is that presidents and other officers who may be impeached for “[t]reason, [b]ribery, or other high [c]rimes and [m]isdemeanors”¹⁹ are subject to criminal prosecution following impeachment; the Office of Legal Counsel opinions concluding otherwise when it comes to sitting presidents assume or expressly note that ex-presidents may face criminal charges.²⁰ And if that was not enough, Article I expressly grants members of Congress immunity for their “[s]peech or [d]ebate.”²¹ The lack of a comparable provision granting such immunity to presidents or ex-presidents would, under ordinary rules of constitutional interpretation, suggest that the Constitution grants no such immunity.

Next, consider what founding-era history tells us. As an amicus brief filed by a group of eminent historians put it, “[s]ometimes history speaks ambiguously. But here, it speaks with surpassing clarity[.]”²² As the brief elaborates, “[w]hile the Founders had a range of ideas about the scope of executive power, none of those ideas included conferring immunity on the President in the circumstances at issue here. [Trump]’s argument to the contrary is not historically credible.”²³

Just a few examples of relevant statements from key founders make the point. Alexander Hamilton wrote in Federalist No. 69 that former presidents would be “liable to prosecution and punishment in the ordinary course of law.”²⁴ He emphasized that while in Great Britain the king was “sacred and inviolable,”²⁵ the president, by contrast, would be “amenable to personal punishment.”²⁶ James Wilson, perhaps the most important founding-era thinker on the presidency, argued that federal officers who commit crimes “may be tried by their country; and if their criminality is established, the law will punish.”²⁷ James Iredell, one of the first Supreme Court justices, explained that “[i]f [the President] commits any crime, he is punishable by the laws of his country.”²⁸

There is nothing remotely comparable in the historical record supporting the opposing position. So it is unsurprising that not a single historians’ brief was filed in support of immunity.²⁹

Constitutional structure points in the same direction. The idea of limitations on power—and its corollary, that the branches would check one another to avoid excessive accumulations of power—is foundational to the Constitution. Madison’s Federalist No. 51, perhaps the most famous meditation on the separation of powers, explains that the “security against a gradual concentration of the several powers in the same department”—that is, in a single branch of government—

consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others . . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.³⁰

Numerous precedents, of both courts and other entities, provide further support for what is already evident in constitutional text, history, and structure.

Beginning with judicial precedent, over fifty years ago, the Supreme Court unanimously rejected another extravagant claim of presidential immunity: President Richard Nixon’s effort to have the Court excuse him from producing White House tapes in conjunction with a Special Prosecutor’s investigation of the Watergate break-in and cover-up.³¹ During the Clinton administration, the Court—again unanimously—ruled against a President who sought immunity from civil legal process during his presidency.³² And just five years ago, the Court, in another opinion by Chief Justice Roberts, rejected Trump’s argument that he should be exempt from a subpoena issued by the Manhattan district attorney.³³ Quoting John Marshall, Roberts noted that while “a king is born to power and can ‘do no wrong,’ the president is ‘of the people’ and subject to the law.”³⁴ (Even Justice Alito, who would have shielded then-sitting President Trump from cooperation with the DA’s investigation, emphasized that he was talking only about sitting presidents; Alito wrote that “[t]he law applies equally to all persons, including a person who happens for a period of time to occupy the Presidency,” claiming only that “the nature of the office demands in some instances that the application of laws be adjusted at least until the person’s term in office ends.”³⁵

Because those cases involving the president’s role in various legal processes cut sharply—even decisively—against immunity, the Court in Trump v. United States essentially disregarded them. Instead, it purported to rely on two cases—Youngstown, to which I will return shortly, and the 1982 decision in Nixon v. Fitzgerald, in which the Court held that ex-presidents were immune from civil damages suits—that is, from being sued for money damages—at least in the absence of explicit congressional authorization for such suits.³⁶ The Court in Trump v. United States extended Fitzgerald to announce a new immunity from criminal process, despite the many important differences between civil and criminal processes, and even though Fitzgerald recognized those differences.³⁷

In addition to these judicial precedents, there is considerable executive-branch evidence that previous presidents well understood that they could be prosecuted after leaving office. An anecdote in Robert Jackson’s posthumously published “That Man” (referring to President Franklin Delano Roosevelt) makes this clear. During the early part of FDR’s administration, the only airport in Washington, D.C. was little more than a pasture intersecting a highway, which meant closing the roads when a plane came in for a landing. The President decided that the country needed something more than a cow pasture as a national airport, and he aimed to re-allocate funds to build one.³⁸ At one point he tasked Jackson, then Solicitor General, with figuring out how to free up funds from other sources for this airport. Expressing some concerns about the legality of the moves he was contemplating, Roosevelt asked Jackson whether “he was likely to go to jail as a result of it.”³⁹ Jackson replied that he was willing “to go to jail with him if that would be any comfort.”⁴⁰

There are other examples. The text of the “full, free, and absolute pardon”⁴¹ President Gerald Ford granted President Richard Nixon following Nixon’s resignation made clear that but for the pardon, Nixon might have faced criminal prosecution for actions he had taken as president. Ford wrote in his proclamation that “Richard Nixon has become liable to possible indictment and trial for offenses against the United States,” and explained that he was pardoning Nixon to avoid “exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”⁴²

The day before President Bill Clinton left office, he reached a deal with the special prosecutor Robert Ray to pay a $25,000 fine and to agree to a suspension of his law license to avoid criminal prosecution arising out of his testimony regarding Monica Lewinsky.⁴³ There is no indication that Clinton believed he might be absolutely immune from criminal liability after leaving office.

Legislative evidence confirms these executive-branch understandings. Just five years ago, when then-Senate Majority Leader Mitch McConnell voted to acquit Donald Trump following Trump’s impeachment trial for incitement of insurrection following the January 6 attack on the Capitol, McConnell explained that “[w]e have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”⁴⁴

*      *      *

That, then, is a necessarily abbreviated overview of what the traditional modes of constitutional reasoning would have produced on the question of immunity for ex-presidents. But the Court in Trump v. United States rejected all of that in favor of a mode of reasoning that was nakedly consequentialist and pragmatic—the Court worried about what it would do, what it would mean, were the Court not to protect ex-presidents from liability for the crimes they commit in office. The Court warned that refusing immunity would result in a chief executive “unable to boldly and fearlessly carry out his duties.”⁴⁵ The Court also reasoned that “[t]he hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under a pall of potential prosecution, . . . raises unique risks to the effective functioning of government.”⁴⁶

To be clear, in my view, courts should consider the consequences of their decisions; and since it’s inevitable that they do so, I favor being forthright about it. But it is difficult to square the Court’s pragmatism in this case with the refusal of some of its members to countenance arguments grounded in policy or consequences in other spheres, especially those involving individual rights—guns,⁴⁷ say, or the liberty and autonomy interests in deciding whether to continue with a pregnancy,⁴⁸ or to marry the partner of one’s choice.⁴⁹

II. Roberts and Jackson in Trump v. United States

Although the Court in Trump v. United States was clearly driven by its concern about the consequences of allowing the prosecution of Donald Trump to proceed, it sought to justify its decision on other grounds. It claimed that its decision announcing a novel form of immunity for ex-presidents was grounded both in broad separation-of-powers principles and in the Court’s precedents.⁵⁰ The Court leaned heavily on the civil immunity case Nixon v. Fitzgerald, discussed above,⁵¹ but the opinion that loomed the largest was Justice Jackson’s concurrence in Youngstown.

Youngstown is, of course, a major presidential power case, and it is one that John Roberts invoked repeatedly in his confirmation hearing to be Chief Justice. In response to questions about the presidency, Roberts assured the Senate Judiciary Committee that:

[N]o one is above the law under our system, and that includes the President. The President is fully bound by the law, the Constitution and statutes. Now, there often arise issues where there’s a conflict between the Legislature and the Executive over an exercise of Executive authority, asserted Executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case.⁵²

As Roberts continued, he made clear that it was the Jackson concurrence that he viewed as most important, noting that “[his] understanding of the appropriate approach in this area is that it is the Youngstown analysis, the one set forth in Justice Jackson’s concurring opinion.”⁵³ Roberts spoke more broadly about Jackson during his confirmation hearing:

One reason people admire Justice Jackson so much is that although he had strong views as Attorney General, he recognized, when he became a member of the Supreme Court, that his job had changed, and he was not the President’s lawyer, he was not the chief lawyer in the executive branch, he was a Justice sitting in review of some of the decisions of the Executive. And he took a different perspective.⁵⁴

Roberts, a former executive-branch lawyer and former law clerk to William Rehnquist, himself a former executive-branch lawyer and former law clerk to Robert Jackson, may have felt a particular degree of kinship when he noted “that’s, again, one reason many admire him, including myself.”⁵⁵

At issue in Youngstown was the lawfulness of an executive order, issued by President Truman, ordering the Secretary of Commerce to take control of most of the nation’s steel mills.⁵⁶ The context for the order was a labor dispute that arose between the nation’s largest steel companies and the United Steel Workers during the United States’s involvement in the Korean War.⁵⁷ After unsuccessful efforts at negotiation involving two separate federal agencies, the union provided notice of its intent to begin a nationwide strike on April 9.⁵⁸

A few hours before the strike was set to begin, President Truman issued his order directing the Secretary of Commerce to take possession of the steel plants and keep them running.⁵⁹ Addressing the nation directly to defend his action, the President explained that both national defense imperatives and the need for a strong domestic economy required the uninterrupted supply of steel, something the planned strike would imperil.⁶⁰

Following the issuance of the President’s order, the Secretary of Commerce issued orders taking possession of the steel plants and directing their continued operation.⁶¹ The companies complied but immediately filed suit, alleging that the President did not have the legal authority to seize the plants.⁶² In defense of its actions the administration made a breathtakingly broad argument for presidential power, in particular in the context of emergencies.⁶³ The Supreme Court took up the case, framing the question as whether “the seizure order [was] within the constitutional power of the President?”⁶⁴ The answer the Supreme Court gave, in a word, was no.⁶⁵

Justice Hugo Black authored the majority opinion, and Justice Felix Frankfurter added an important concurrence, but the most important opinion is without question Justice Jackson’s concurring opinion.⁶⁶ Its enduring power is in part traceable to Jackson’s unique background—because he himself had served in a number of executive branch roles, including both Solicitor General and Attorney General to President Franklin Delano Roosevelt, he had considerable experience, from the perspective of an executive branch lawyer, analyzing questions of executive power.⁶⁷ But it is also an opinion that is bracing both in its eloquence and the force of its reasoning.

Jackson’s opinion began by acknowledging the relatively small amount of settled law on questions of presidential power. He wrote:

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.⁶⁸

Because the text of the Constitution did not answer the most difficult questions about executive power, and because statements from the Federalist Papers and other founding-era sources could be marshaled to support essentially any position, Jackson emphasized the need to devise a practical framework for analyzing any president’s assertion of authority.⁶⁹ This was where he offered his now-famous tripartite scheme.⁷⁰ Assertions of presidential power, he explained, do not happen in a vacuum; they happen against the backdrop of what Congress has done, or has not done, on a particular topic.⁷¹ And they typically come in one of three zones. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”⁷² Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”⁷³ And third, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”⁷⁴

In the Youngstown case itself, Jackson concluded that the asserted power fell within the third zone, because Congress had taken actions that clearly communicated its desire to deny to the President the power to seize property like steel mills in the event of a labor dispute.⁷⁵ And under what has come to be known as “Zone 3,” Jackson had no difficulty finding that the seizure was unlawful.⁷⁶

For decades, Youngstown has stood as a declaration of judicial independence and a statement of the limits on presidential power. Youngstown was the first Supreme Court case Chief Justice Roberts cited in his majority opinion in Trump v. United States.⁷⁷ He cited or referenced it a dozen times, with most of those citations to the Jackson concurrence.⁷⁸

Early in the opinion, Roberts observed that “[t]his case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency” and reasoned that deciding the case required “careful assessment of the scope of Presidential power under the Constitution.”⁷⁹ He noted, quoting from Youngstown, that deciding the case required a focus upon the “enduring conse­quences upon the balanced power structure of our Repub­lic.”⁸⁰

But Roberts did not simply take broad inspiration from Youngstown. In a series of passages that were in turns formalist and functionalist, but above all at odds with the thrust of Jackson’s Youngstown concurrence, he offered his own tripartite framework—not for presidential power, but for presidential immunity.⁸¹

In the first category in Roberts’s tripartite scheme, the president is absolutely immune when exercising core Article II powers. Roberts claimed that this category flowed directly from Youngstown, and in particular Jackson’s Zone 3. The Roberts opinion explained that in constitutional cases, “the President’s authority is sometimes ‘con­clusive and preclusive.’”⁸² According to Roberts’s gloss on Jackson,

When the President exercises such [core Article II] authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” The exclusive constitutional authority of the President “dis­abl[es] the Congress from acting upon the subject.” . . . . [O]nce it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.⁸³

Roberts’s rendering of Jackson conveyed the impression that Jackson’s opinion contained a full-throated endorsement of broad presidential powers beyond the reach of Congress to regulate or courts to examine.⁸⁴ But the very passage from which Roberts quoted reads very differently in its entirety. It said, of “Zone 3,” that

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb . . . . Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.⁸⁵

Read in context, it is clear that rather than announce a broad presidential power, the passage aimed to warn of its danger, and to urge caution in recognizing it. It suggested that presidents may rarely act contrary to congressional direction—it certainly did not bless Truman’s defiance of Congress in the seizure context—and it offered, as the rare example of something Congress could not do, a congressional effort to limit the president’s ability to remove officials who wield executive power. But even this example did not do the work Roberts attributed to it: in a parenthetical, Roberts suggested that Youngstown offered “the President’s ‘exclusive power of removal in executive agencies’ as an example of ‘conclusive and preclusive’ constitutional authority.”⁸⁶ In fact, Jackson in Youngstown actually wrote that an “exclusive power of removal in executive agencies . . . continued to be asserted and maintained” by the Roosevelt administration.⁸⁷ At best, Roberts significantly distorted the meaning of this passage; at worst, he flipped its valence entirely.

Jackson also warned of the dangers of unchecked and concentrated executive power—in particular of the “emergency” powers the administration was claiming the president possessed—linking such assertions to both King George III and to governments in Jackson’s own time that “we disparagingly describe as totalitarian.”⁸⁸ The opinion referenced the “equilibrium established by our constitutional system,”⁸⁹ underscoring that executive power “must be read with sensitivity to the essential counterbalance provided by Congress.”⁹⁰

These aspects of Jackson’s Youngstown concurrence were not only absent from but run directly contrary to Roberts’ opinion extending absolute immunity to a wide swath of presidential conduct.

Turning to the allegations in the case against Donald Trump, Roberts suggested that the President’s dealings with the Justice Department were in the category of presidential powers that Congress could not regulate—including by exposing a former president to criminal liability under generally applicable laws if he violated those laws in his dealings with the Department of Justice.

According to Roberts, allegations that the former President tried to use the Department of Justice to further a scheme to remain in office despite his election loss “plainly implicate Trump’s ‘conclusive and preclusive’ authority.”⁹¹ The Court explained that “[i]nvestigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’⁹² and the Constitution vests the entirety of the executive power in the President.”⁹³ Roberts concluded that Trump’s threatened removal of the Acting Attorney General likewise implicated “conclusive and preclusive” presidential authority.⁹⁴

This meant that all of the allegations involving Trump’s interactions with the Department of Justice fell in Roberts’s first category, rendering Trump “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”⁹⁵ According to the dissenting Justices, the upshot of this conclusion is that anything the president directs subordinates to do—including wildly unlawful activities, like plotting a coup or directing officials to commit treason or murder⁹⁶—would be necessarily immune.⁹⁷ And it is possible that this reasoning may not be limited to the DOJ; on at least Professor Trevor Morrison’s reading, the Court’s reference to the president’s “Take Care” clause powers in this passage may mean that absolute immunity extends to the president’s interactions with subordinates across the federal government, rather than just in the Justice Department.⁹⁸

Returning to Roberts’s tripartite scheme, Roberts did allow that the president’s unofficial conduct enjoyed no immunity⁹⁹—although at that point, not even Trump was arguing otherwise. More relevant for our purposes, Roberts identified his own “zone of twilight” between absolutely immune conduct involving “core” presidential powers, and unofficial conduct not subject to immunity.¹⁰⁰ This intermediate category, Roberts concluded, involved official presidential conduct in “areas where [presidential] authority is shared with Congress.”¹⁰¹ The Court reasoned that the Constitution’s structural principles, together with the Court’s own precedents, “necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”¹⁰²

Roberts concluded that a number of the complaint’s remaining allegations fell into this category, including those involving Trump’s tweets encouraging his supporters to travel to D.C. on January 6, 2021; Trump’s January 6 speech on the Ellipse; and Trump’s efforts to pressure the Vice President to vote against certifying the 2020 election’s results.

Roberts explained that in contrast to the president’s dealings with the Department of Justice, which were absolutely immune, the presidential tweets and other speech at issue were only (at least) presumptively immune. In defense of this conclusion, Roberts explained that “a long-recognized aspect of Presidential power is us­ing the office’s ‘bully pulpit’ to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest.”¹⁰³ It is true, of course, that for over a century, presidents have used the bully pulpit to augment the formal powers of the presidency.¹⁰⁴ For Roberts, this was a reason to give presidential speech at least presumptive immunity, no matter how dangerous or destructive the speech.

But Justice Jackson’s Youngstown concurrence—in a portion of the opinion less well known than its famous tripartite scheme—struck a very different note on the topic of presidential speech. As Jackson wrote, in language that is shockingly relevant over seventy years later,

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.¹⁰⁵

Note the import of this passage, in particular its ending. To Jackson, the fact of the president’s access to the bully pulpit was a reason for judicial vigilance, not deference, since the combination of formal and informal authorities meant that the president might otherwise overwhelm institutional rivals and upend the constitutional separation of powers. Roberts again turned Jackson’s logic on its head, suggesting that the president’s rhetorical primacy was a reason to insulate the president from sanctions for illegal acts that involve speech (as many acts do).¹⁰⁶

Throughout this portion of the opinion, Roberts’s moves were far closer to the unsuccessful arguments made below in Youngstown than to Jackson. In defense of his power to seize the steel mills, Truman had maintained that the only real limitations on executive power are “the ballot box and . . . impeachment.”¹⁰⁷ That claim was decisively rejected in Youngstown; Jackson himself at oral argument chastised the President’s lawyers for seeking to rely on Jackson’s own earlier statements as Attorney General, when Jackson had defended President Roosevelt’s actions involving the North American Aviation Plant. As Justice Jackson explained in Youngstown, “The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy.”¹⁰⁸ But he rejected such effort out of hand: “a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.”¹⁰⁹

III. Trump and the Future of Youngstown

The majority and dissenting opinions in Trump v. United States offered very different glosses on the opinion’s scope,¹¹⁰ and the opinion has spurred competing interpretations among commentators regarding, among other things, the actual significance of the immunity portion of the ruling¹¹¹ and its implications for presidential subordinates.¹¹² But in the remaining space here I want to focus on the opinion’s implications for the power of courts to restrain presidential action through ordinary litigation—that is, the power to do exactly what the Court did in Youngstown in deeming the steel seizure unlawful.¹¹³

Although the question at issue in Trump was the immunity of ex-presidents from criminal prosecution, some of the opinion’s language could invite a still broader reading—one that reaches beyond immunity from criminal prosecution to disable Congress and potentially even courts from any role vis-à-vis large swaths of presidential conduct. As Professor Morrison frames it, the Trump majority “seems to have said that the President is not subject to any legislative restriction (through the criminal law or otherwise) of any of his interactions with any executive official who has any role in law execution, no matter the context, no matter the purpose, no matter the result.”¹¹⁴ And as Morrison notes, the Trump Administration appears to be “inching in the direction of” pressing a reading of the Trump opinion that would place “presidential orders about law execution”—which would be virtually all presidential orders of any significance—“categorically beyond the power of courts to review.”¹¹⁵

The possibility that Trump might be understood to bar courts from issuing any sort of “coercive” relief that would restrain presidential conduct in many or most of the contexts in which presidents act is an ominous one.¹¹⁶ But whatever the Trump Court intended, it surely did not intend to disavow Youngstown—something this courts-and-Congress-disabling reading would effectively do.

That is because even as Trump inverted Youngstown’s logic regarding the importance of limitations on presidential power, it cited the opinion repeatedly and approvingly—not only the Jackson concurrence, but the majority’s now well-settled rule that presidential power must be traceable either to the Constitution or to an act of Congress.¹¹⁷ A reading of Trump that entirely prevented Congress from regulating, and courts from superintending, the president’s power to execute the laws would vitiate that part of Youngstown—something the Trump Court made clear it was not doing.¹¹⁸ It is true that the Court’s unduly broad description of the president’s power to execute the law can be read to place all presidential law execution in the untouchable “conclusive and preclusive” category.¹¹⁹ But this language must be read in the context both of the rest of the opinion and background law. Both make clear that it cannot be that the majority opinion in Trump embraced the Nixonian view that “when the President does it, that means that it is not illegal.”¹²⁰ If the opinion had done that, it would necessarily have repudiated Youngstown.

None of this is to minimize the damage the opinion in Trump has already done and will yet do. But the point is that neither lower courts nor lawyers in the executive branch would be justified in reading the opinion to functionally undo what the majority and Justice Jackson did in Youngstown—insist that presidential power in the first instance must be traceable to constitutional or statutory grants of authority, and make clear that the domains of exclusive presidential power are highly circumscribed. Roberts clearly announced immunity from criminal liability for ex-presidents for significant quantities of presidential conduct. But the opinion cannot further disempower Congress and courts, and further empower presidents, without repudiating Youngstown. If Roberts wants to take that step, he should be required to do so himself.

Conclusion

Roberts ended his immunity opinion by insisting that “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”¹²¹

That may be true. But the logic of Roberts’s opinion in Trump does not further but badly undermines separation-of-powers values, creating an executive that is dangerously untethered from both law and constraint. Still, the opinion’s heavy reliance on Youngstown both limits the force of the ruling and holds out the promise of a return to a better calibrated vision of presidential power. Here, it is worth returning to the note on which Jackson ended his famous concurrence:

[M]en have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.¹²²

1. Trump v. United States, 144 S. Ct. 2312, 2334 (2024). ↩︎
2. See, e.g., Marty Lederman, The Insignificance of Trump’s “Immunity from Prosecution” Argument, Lawfare (Feb. 27, 2024, at 1:27 PM), https://www.lawfaremedia.org/article/the-insignificance-of-trump-s-immunity-from-prosecution-argument [https://perma.cc/N6MX-J8JP] (“Trump’s arguments for immunity border on the frivolous . . . .”). ↩︎
3. United States v. Trump, 704 F. Supp. 3d 196, 219-20 (D.D.C. 2023), aff’d, 91 F.4th 1173 (D.C. Cir. 2024), vacated and remanded, 144 S. Ct. 2312 (2024). ↩︎
4. Id. (quoting United States v. Lee, 106 U.S. 196, 220 (1882)). ↩︎
5. United States v. Trump, 91 F.4th at 1180, 1191. ↩︎
6. Trump, 144 S. Ct. at 2327. ↩︎
7. Id. ↩︎
8. See id. at 2328 (“Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority.”); see id. at 2327 (“[O]nce it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.”). ↩︎
9. Id. at 2331-32 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982) (internal quotation marks omitted)). ↩︎
10. Id. at 2333 (quoting Blassingame v. Trump, 87 F.4th 1, 13 (D.C. Cir. 2023)). ↩︎
11. Id. at 2327. ↩︎
12. Id. at 2332. ↩︎
13. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). ↩︎
14. Trump, 144 S. Ct. at 2326-28, 2345-47. ↩︎
15. U.S. Const. art. II, § 4 (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”). ↩︎
16. U.S. Const. art. I, § 3 cl. 6 (“When the President of the United States is tried, the Chief Justice shall preside[.]”). ↩︎
17. U.S. Const. art. I, § 3, cl. 7. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 347-51 (2010) (discussing the historical debate around the standards for impeachable offenses by the President and noting James Madison’s concern that “impeachment was to be governed by legal standards and not by congressional whim”). ↩︎
18. See Thomas P. Schmidt, Presidential Immunity: Before and After Trump, 79 Vand. L. Rev. (forthcoming 2026) (manuscript at 153), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5187348 [https://perma.cc/R3JK-NYS5] (“The Constitution expressly contemplates that an ex-President can be prosecuted for bribery[.]”). ↩︎
19. U.S. Const. art. II, § 4. ↩︎
20. See Memorandum from Robert G. Dixon Jr., Assistant Att’y Gen., Off. of Legal Couns., on Amenability of the President, Vice President and Other Civil Officers to Federal Criminal Prosecution While in Office 28-29, 32 (Sept. 24, 1973) (assuming that key obstacle to post-presidential prosecutions is possible running of statutes of limitations); Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 110 (Aug. 18, 2000) (“[A] former President may be prosecuted for crimes of which he was acquitted by the Senate.”). ↩︎
21. U.S. Const. art. I, § 6, cl. 1 (“Senators and Representatives . . . shall in all Cases . . . be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and retuning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”). Cf. Katherine Shaw, Impeachable Speech, 70 Emory L.J. 1, 55 (2020) (“[A]s a general matter, the Constitution’s conspicuous failure to protect presidential speech in the way it protects legislative speech may be significant.”). ↩︎
22. Brief of Amici Curiae Scholars of the Founding Era in Support of Respondent at 2, Trump v. United States, 144 S. Ct. 2312 (2024) (No. 23-939). ↩︎
23. Id. at 3. ↩︎
24. The Federalist No. 69, at 348 (Alexander Hamilton) (Ian Shapiro ed., 2009). ↩︎
25. Id. ↩︎
26. Id. at 348, 353. ↩︎
27. 2 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution 477 (Philadelphia, J.P. Lippincott & Co., Jonathan Elliot ed., 2d ed. 1861). ↩︎
28. Brief of Amici Curiae Scholars of the Founding Era in Support of Respondent at 2, Trump, 144 S. Ct. 2312 (No. 23-939) (second alteration in original). ↩︎
29. Docket for Trump v. United States, No. 23-939 (Feb. 6, 2024) https://www.supremecourt.gov/docket/docketfiles/html/public/23939.html [https://perma.cc/B7NM-G7HF]. ↩︎
30. The Federalist No. 51, at 264 (James Madison) (Ian Shapiro ed., 2009). ↩︎
31. See generally United States v. Nixon, 418 U.S. 683 (1974). ↩︎
32. See Clinton v. Jones, 520 U.S 681, 684, 709 (1997) (holding that Clinton was not entitled a stay on proceedings regarding civil litigation relating to actions taken before his presidency). ↩︎
33. See generally Trump v. Vance, 140 S. Ct. 2412 (2020). ↩︎
34. Id. at 2422. ↩︎
35. Id. at 2446 (Alito, J., dissenting) (emphasis added). ↩︎
36. See generally Nixon v. Fitzgerald, 457 U.S. 731 (1982). ↩︎
37. See id. at 754, n.37 (recognizing a weaker public interest in actions for civil damages than criminal prosecutions). ↩︎
38. Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 47 (John Q. Barrett ed., 2003). ↩︎
39. Id. at 48. ↩︎
40. Id. ↩︎
41. Proclamation 4311, 88 Stat. 2502, 2503 (1974). ↩︎
42. Id. at 2502-03. ↩︎
43. David Stout, Clinton Reaches Deal to Avoid Indictment and to Give Up Law License, N.Y. Times (Jan. 19, 2001), https://www.nytimes.com/2001/01/19/politics/clinton-reaches-deal-to-avoid-indictment-and-to-give-up-law-license.html [https://perma.cc/A36W-WPK9]. ↩︎
44. Read McConnell’s Remarks on the Senate Floor Following Trump’s Acquittal, CNN (Feb. 13, 2021, at 5:50 PM ET), https://www.cnn.com/2021/02/13/politics/mcconnell-remarks-trump-acquittal/index.html [https://perma.cc/8XNW-G7VF]. This echoed assurances Trump’s own lawyers had made during his trial. See 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, at 144 (2021) (maintaining that an ex-president “is like any other citizen and can be tried in a court of law.”). ↩︎
45. Trump v. United States, 144 S. Ct. 2312, 2346 (2024). ↩︎
46. Id. at 2331 (internal quotations omitted). ↩︎
47. District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008) (“A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”). ↩︎
48. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 239 (2022) (“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”). ↩︎
49. See Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting) (“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”). Trump v. United States is not the only case decided that term in which the court eschewed more familiar modes of constitutional reasoning in favor of pure pragmatism (and one whose pragmatic judgments were highly questionable); Trump v. Anderson, 144 S. Ct. 662 (2024) (per curiam), which barred states from enforcing Section 3 of the Fourteenth Amendment, shared many of those features. See generally Aziz Z. Huq, Structural Logics of Presidential Disqualification, 138 Harv. L. Rev. 172, 226 (2024). ↩︎
50. Trump, 144 S. Ct. at 2319-20, 2331. ↩︎
51. To be clear, it took some of the language of Nixon v. Fitzgerald, in particular its discussion of the possibility of rebutting presumptive immunity, “spectacularly out of context.” Trevor W. Morrison, All the President’s Men, N.Y.U. L. Rev. Online, Aug. 20, 2025, at 13, n. 56. ↩︎
52. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 152 (2005) (statement of John Roberts, J.). ↩︎
53. Id. at 243. ↩︎
54. Id. at 153. ↩︎
55. Id. Admiration for the opinions in Youngstown is not, of course, limited to Chief Justice Roberts. See, e.g., William Baude & Michael Stokes Paulsen, Sweeping Section Three Under the Rug: A Comment on Trump v. Anderson, 138 Harv. L. Rev. 676, 678 (2025) (describing the Youngstown opinions as involving “some of the most important, powerfully reasoned judicial opinions concerning fundamental questions of separation of powers in its history”). ↩︎
56. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952). ↩︎
57. Id. at 582, 590. ↩︎
58. Id. at 583. ↩︎
59. Id. ↩︎
60. Id. at 589-91. ↩︎
61. Id. ↩︎
62. Id. at 583. ↩︎
63. Id. at 584; see also The Steel Seizure Case, H.R. Doc. No. 82–534, at 371 (1952) (“[W]hen an emergency situation in this country arises that is of such importance to the entire welfare of the country that something has to be done about it and has to be done now, and there is no statutory provision for handling the matter, that it is the duty of the Executive to step in and protect the national security and the national interests. We say that Article II of the Constitution, whi[ch] provides that the Executive power of the Government shall reside in the President, that he shall faithfully execute the laws of the office and he shall be Commander-in-Chief of the Army and of the Navy and that he shall take care that the laws be faithfully executed, are sufficient to permit him to meet any national emergency that might arise, be it peace time, technical war time, or actual war time.”); see generally Patricia Bellia, The Story of the Steel Seizure Case, in Presidential Power Stories 233 (Christopher H, Schroeder & Curtis A. Bradley eds. 2009). ↩︎
64. Youngstown, 343 U.S. at 584. ↩︎
65. Id. at 587-89. ↩︎
66. Id. at 582, 593 (Frankfurter, J., concurring), 634 (Jackson, J., concurring). ↩︎
67. Solicitor General: Robert H. Jackson, U.S. Dep’t of Justice: Off. of the Solic. Gen. (Sept. 18, 2023), https://www.justice.gov/osg/bio/robert-h-jackson [https://perma.cc/FGA6-DKDQ]. ↩︎
68. Youngstown, 343 U.S. at 634-35 (Jackson, J., concurring). ↩︎
69. Id. at 635, n.1, 652. ↩︎
70. Id. at 635-38. ↩︎
71. See id. at 635 (“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.”). ↩︎
72. Id. at 635. ↩︎
73. Id. at 637. ↩︎
74. Id. See also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 726 (2008) (describing the “subtraction metaphor” as “unhelpful,” and offering instead a metaphor “that draws from the Supreme Court’s treatment of similar questions in other separation of powers contexts but that also accords with Justice Jackson’s own indications of how the inquiry should be performed—namely, that of cores and peripheries.”). ↩︎
75. Youngstown, 343 U.S. at 639-40 (Jackson, J., concurring). ↩︎
76. Id. at 654-55. Indeed, no president had ever prevailed in a Zone 3 case until Zivotofsky v. Kerry in 2015. See Zivotofsky v. Kerry, 576 U.S. 1, 61 (2015) (Roberts, C.J., dissenting) (“Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”). ↩︎
77. Trump v. United States, 144 S. Ct. 2312, 2326 (2024). ↩︎
78. Id. at 2326, 2327, 2328, 2345, 2347. ↩︎
79. Id. at 2326. ↩︎
80. Id. at 2326 (quoting Youngstown, 343 U.S. at 634 (Jackson, J., concurring)). ↩︎
81. Professor Morrison has suggested that the distinction between power and immunity may in fact be illusory, at least if we understand immunity as consisting of both remedial and substantive components, with substantive immunity functionally interchangeable with power in this context. Morrison, supra note 51, at 14-16. As I discuss infra, this may collapse an important distinction, and may undervalue the degree to which the Trump decision is best read to preserve important aspects of Youngstown on the scope of presidential power. ↩︎
82. Trump, 144 S. Ct. at 2327 (quoting Youngstown, 343 U.S. at 638 (Jackson, J., concurring)). ↩︎
83. Id. (quoting Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring)) (internal citations omitted). As examples of this sort of un-regulable presidential conduct, Roberts initially identified the pardon power, the power to recognize foreign sovereigns, and the power to remove and thus to supervise executive-branch officials. Id. at 2327-28. (As Shalev Roisman has explained, these are actually all best understood as areas of overlapping rather than exclusive authority. See Shalev Gad Roisman, Trump v. United States and the Separation of Powers, 173 U. Pa. L. Rev. Online 33, 41 (2025)). Later in the opinion, when analyzing the specific allegations against Trump, Roberts included the power over investigation and prosecution of crimes. See Trump, 144 S. Ct. at 2334-35; see also infra note 111. ↩︎
84. See Cliff Sloan, How the Supreme Court’s Presidential Immunity Decision Twisted a Great Legacy, Slate (Sep. 1, 2025, at 10:00 AM), https://slate.com/news-and-politics/2025/09/nuremberg-movie-2025-robert-jackson-john-roberts-supreme-court-presidential-immunity.html [https://perma.cc/9DRN-KDAD] (“Chief Justice John Roberts’ majority opinion wraps itself in the authority and aura of Jackson . . . .”). ↩︎
85. Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). ↩︎
86. Trump, 144 S. Ct. at 2328. ↩︎
87. Youngstown, 343 U.S. at 638 n.4 (Jackson, J., concurring). ↩︎
88. Id. at 641. Jackson continued: “I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review . . . .” Id. at 654. ↩︎
89. Id. at 638. ↩︎
90. Gerard N. Magliocca, The Actual Art of Governing: Justice Robert H. Jackson’s Concurring Opinion in the Steel Seizure Case 72 (2025). ↩︎
91. Trump, 144 S. Ct. at 2334. ↩︎
92. Id. at 2335 (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)). ↩︎
93. Id. (citing U.S. Const. art. II, § 1). ↩︎
94. Id. at 2334. ↩︎
95. Id. at 2335. ↩︎
96. See id. at 2371 (Sotomayor, J., dissenting) (“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”). ↩︎
97. In other important holdings, the Court also concluded that even if a prosecutor managed to bring a case predicated on unofficial conduct, “official” conduct could not supply the requisite evidence, Trump, 144 S. Ct. at 2340-41, and also concluded that when “dividing official from unofficial conduct, courts may not inquire into the President’s motives,” id. at 2333. ↩︎
98. Id. at 2335. See Morrison, supra note 51, at 24. See also Gillian E. Metzger, Disqualification, Immunity, and the Presidency, 138 Harv. L. Rev. F. 112, 128 (2025) (“If the Chief Justice meant thereby to include all the President’s take care actions in the category of exclusive presidential power, that would encompass a vast array of presidential conduct[.]”). ↩︎
99. Trump, 144 S. Ct. at 2332 (“As for a President’s unofficial acts, there is no immunity.”). ↩︎
100. Id. at 2328. ↩︎
101. Id. ↩︎
102. Id. at 2331. ↩︎
103. Id. at 2339-40. ↩︎
104. See Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71, 81 (2017) (“Beginning with Theodore Roosevelt, ‘twentieth century [P]residents have been increasingly willing to use their office to rally public support behind their policy positions[.]’”). ↩︎
105. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (1952) (Jackson, J., concurring). ↩︎
106. See Katherine Shaw, Impeachable Speech, 70 Emory L.J. 1, 55 (2020) (noting that “the Constitution singles out legislative speech for protection [in the Speech or Debate Clause]—and that no analogous privilege or protection has ever been understood to extend to the statements of the president.”). The Trump Court similarly found the president’s interactions with the vice president at least presumptively immune. Trump, 144 S. Ct. at 2335-37. ↩︎
107. The Steel Seizure Case, H.R. Rep. No. 82–534, at 371-72 (1952). See Neal Devins & Louis Fisher, The Steel Seizure Case: One of A Kind?, 19 Const. Comment. 63, 68–69 (2002) (discussing the federal government’s arguments). ↩︎
108. Youngstown, 343 U.S. at 647 (Jackson, J., concurring). ↩︎
109. Id.; see also id. at 648-49 (“The Solicitor General, acknowledging that Congress has never authorized the seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents . . . . Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.”). ↩︎
110. Compare Trump, 144 S. Ct. at 2371 (Sotomayor, J., dissenting) (“In every use of official power, the President is now a king above the law.”) with id. at 2344 (“[T]he dissents . . . strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”) ↩︎
111. See Jack Goldsmith, The Presidency After Trump v. United States, 2024 S. Ct. Rev. 1, 2 (2025) (“[Trump’s] impact will have less to do with the Court’s immunity rulings than with its related rulings on the President’s exclusive removal power and exclusive power over investigation and prosecution.”); Marty Lederman, A Vivid Illustration of the Impact of the Roberts Court’s Radical New “Unitary Executive” Doctrine, Balkinization (Sep. 23, 2024), https://balkin.blogspot.com/2024/09/a-vivid-illustration-of-impact-of.html [https://perma.cc/39FP-AT38] (arguing that “the most extraordinary and troubling thing about [the Trump] opinion” is not the immunity decision, but rather the holding that the President’s investigatory and prosecutorial powers are “preclusive” and thus untouchable by Congress). ↩︎
112. Compare Morrison, supra note 51, at 18 (“[W]hen subordinates act to effectuate presidential powers that are conclusive and preclusive, the subordinates are no more subject to legislative or judicial constraint than is the President himself.”) with Zachary S. Price, Even If the President Is Immune, His Subordinates Are Not, Yale J. on Regul.: Notice & Comment (Jul. 11, 2024), https://www.yalejreg.com/nc/even-if-the-president-is-immune-his-subordinates-are-not-by-zachary-s-price/ [https://perma.cc/U57G-2ERS] (emphasizing that presidential directives cannot shield subordinates from criminal liability and that legal constraints on those officers remain a critical safeguard against unlawful executive action). Note that on Morrison’s reading, subordinate immunity might include not only Justice Department officials but officials at any agency with a hand in law execution. See Morrison, supra note 51, at 24. ↩︎
113. Schmidt, supra note 18, at 159 (“From Panama Refining and Youngstown, to Trump v. Hawaii and Biden v. Nebraska in the recent times, suits for injunctions (or for vacatur, the injunction’s administrative-law cousin) have been the most important mechanism for checking presidential power.”). ↩︎
114. Morrison, supra note 51, at 24. ↩︎
115. Id. at 26. ↩︎
116. See Schmidt, supra note 18, at 161 (“One threat of the Trump opinion is not just what it holds for criminal cases, but what it augurs for civil cases seeking coercive or declaratory relief.”). ↩︎
117. Trump, 144 S. Ct. at 2327 (quoting Youngstown, 343 U.S. at 585) (“No matter the context, the President’s authority to act necessarily ‘stem[s] either from an act of Congress or from the Constitution itself.’”). ↩︎
118. See id. (“If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”). ↩︎
119. Id. at 2328. ↩︎
120. Morrison, supra note 51, at 5. ↩︎
121. Trump, 144 S. Ct. at 2347. ↩︎
122. Youngstown, 343 U.S. at 655 (Jackson, J., concurring). ↩︎