Introduction

The scope of executive authority has been steadily expanding.[1] With the president undertaking additional responsibilities in the name of executive authority, there have been an increasing number of challenges to the president’s use of this authority.[2] Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer has served as the predominant framework for reviewing a president’s authority to act since it was decided in 1952.[3] In his concurrence, Justice Jackson theorized that all presidential action fell into one of three scenarios: (1) the president acting pursuant to an express grant of Congress or the Constitution; (2) the president acting with authority concurrent to a silent Congress; or (3) the president acting against the consent of Congress.[4]

The office of the presidency has also been understood to have presidential immunity in order to effectuate the Framers’ desire for energetic executive leadership.[5] In Trump v. United States, the Supreme Court examined whether the president has immunity from criminal prosecution over actions taken while in office, and if so, what the scope of such immunity would be.[6]

Part I of this Note opens with a discussion of the historical understanding of the role of the presidency in the federal government before turning to examine the Supreme Court’s opinion in Youngstown.[7] Part II analyzes the line of cases establishing and interpreting presidential immunity, culminating in the Supreme Court’s decision in Trump v. United States.[8] Finally, Part III synthesizes and advocates for a model that combines both the three scenarios of presidential action in Justice Jackson’s Youngstown concurrence and the three tiers of presidential immunity in Trump v. United Statesfor a pragmatic framework that can be used to assess a president’s potential criminal liability for actions taken while in office.[9]

I. The Energetic Executive

One of the bedrock foundations upon which the United States was founded was the separation of powers between the executive, legislative, and judicial branches of the United States.[10] The Framers debated extensively about how much power any one branch should be given and the various checks that other branches would have to safeguard against a branch gone rogue.[11] By the conclusion of the drafting of the Constitution, it became clear that the legislative branch would be the slow, contemplative body that took its time digesting the interests of the electorate before deciding to pass a bill into law.[12] The structure of the legislature gave rise to concerns of possible weaknesses in the government in the event that a sudden disaster requiring immediate action occurred.[13] The belief was that such situations can occur at any moment, and a glacially-paced Congress would be hapless to respond in time.[14] The solution, for the Framers, was in the executive.[15] They envisioned a fast-moving, energetic executive who could respond at a moment’s notice to sudden disaster.[16]

A. President Truman’s Search for Seizure

Such a disaster occurred in 1952 when, amid the Korean War, 560,000 steelworkers across America threatened to go on strike.[17] The strike was the culmination of numerous failed attempts to resolve a dispute between steel companies and their employees, represented by the United Steelworkers of America, concerning the terms that would be included in the collective bargaining agreement set to renew on December 31, 1951.[18] Hours before the strike was scheduled to begin, President Truman issued Executive Order 10340 which directed Charles Sawyer, the Secretary of Commerce, to seize steel mills across the country and keep them operational.[19] In the ensuing weeks, Truman would issue two statements to Congress relaying the details of the steel industry seizure.[20] President Truman’s action was met with silence from the legislature.[21]

B. Constraints on the President’s Authority to Act

The seized steel companies sued Sawyer, arguing that neither Congress nor the Constitution authorized the President’s action.[22] The government argued that the President’s action was justified as an exercise of his inherent executive power, made necessary by an overseas conflict that the President viewed as a threat to the nation.[23] The United States District Court for the District of Columbia granted the steel companies’ motion for preliminary injunction, but this order was immediately stayed by the United States Court of Appeals for the District of Columbia Circuit.[24] The Supreme Court subsequently granted certiorari on an expedited basis to decide, in relevant part, if the scope of the presidency included the authority to seize private industry.[25]

The majority opinion, written by Justice Black, ultimately concluded that such a seizure was not within the scope of the powers granted to the executive branch.[26] The majority reasoned that presidential action must be sanctioned either by an explicit or implicit statement of Congress or the Constitution.[27] The Court concluded that the President’s action was not authorized by Congress because there was no statute expressly or impliedly authorizing such a seizure.[28]In fact, the rejection of an amendment to the Taft-Hartley Act, which would have allowed the President to seize property as a means of labor dispute resolution, was taken to be a tacit rejection by Congress of such a power being vested in the executive.[29] Therefore, the only way President Truman’s action could have been allowed to stand is if it was countenanced by the Constitution.[30] The President argued, and the Supreme Court rejected, that this power could be aggregated from the Vesting Clause and the Take Care Clause found in Article II of the Constitution, as well as the President’s role as Commander-in-Chief.[31] In essence, President Truman contended that he was constitutionally vested with the authority to act as the Commander-in-Chief and take care that all laws related to that authority were duly executed, which included the resolution of labor disputes in order to prevent the stoppage of wartime production.[32] This view was not adopted by the majority, who instead characterized President Truman’s action as too broad to be supported by his military powers and more akin to legislation than any executive policymaking.[33]

**C. Justice Jackson’s Youngstown Concurrence**

Though Justice Black wrote the majority opinion in Youngstown, the concurring opinion of Justice Jackson is arguably the more influential opinion from that case.[34] Justice Jackson’s concurrence posits that all presidential action falls into one of three scenarios.[35] In the first scenario, the president acts with the consent of either Congress or the Constitution.[36] Presidential power is at its peak and the action can only be invalidated if the judiciary determines that the government as a whole does not possess that power.[37] In the second scenario, the president acts to the silence of Congress and the Constitution.[38] The president’s action here falls into a zone of twilight where his authority to act may exist concurrently with Congress’s authority.[39] Justice Jackson counsels that the courts must carefully consider the constitutionality of a president’s twilight action by balancing several factors.[40] There is no bright-line rule here but rather a case-by-case analysis.[41] In the third scenario, the president acts against the consent of Congress.[42] Here, the president’s authority to act is at its weakest, and is heavily scrutinized because enabling the president to act in this scenario would necessarily disable Congress from acting.[43] Addressing the constitutionality of President Truman’s action, Justice Jackson rejected the notion that President Truman’s action fell into either of the first two categories.[44]This is because Congress never explicitly granted the President such powers, precluding the first category, nor had it been silent as to the matter; it had previously passed statutes allowing for executive seizure in certain limited instances.[45] In placing President Truman’s steel industry seizure in the third category, Justice Jackson took an approach that emphasized caution and highlighted that the boundaries of presidential power may be unknown to the presidency itself.[46]

II. The Rise of Presidential Immunity

Questions of presidential immunity necessarily implicate the separation of powers doctrine.[47] Courts have recognized the unique space the presidency occupies in the structure of the federal government and have been hesitant to allow presidents to be haled into court for fear of the paralytic effect this would have on the presidency.[48] In addition, courts must balance Congress’s interest in passing equally applicable laws against the president’s interest in remaining free from legislative encroachment upon executive authority.[49] It is against the backdrop of this tapestry of concerns that this Note recounts the history and rationale underlying the presidential immunity jurisprudence of today.[50]

A. The Nixon Years

Presidential immunity, unlike its legislative counterpart, is a creature of the law.[51] Whereas Congress is granted legislative immunity by the Constitution, no such immunity is explicitly given to either the judicial or executive branches.[52] Nevertheless, the Supreme Court has historically reaffirmed the principle that members of the judiciary enjoy absolute immunity over judicial actions.[53] Presidential immunity, by contrast, has only been constructed within the last half-century.[54]

In Butz v. Economou, when the actions of federal executive officials resulted in a constitutional cause of action against them, the Supreme Court declared that federal executive officials were entitled to qualified immunity.[55] One year later, in Halperin v. Kissinger, the D.C. Circuit used the rationale of Butz when it concluded that President Nixon was entitled only to qualified immunity.[56] Indeed, the disposition of the courts was, and still is, that qualified immunity for executive officers is the rule, not the exception.[57] However, the Supreme Court never explicitly addressed presidential immunity in a contemporary setting until 1982, when it decided Nixon v. Fitzgerald.[58]

Fitzgerald involved a civil suit commenced by the respondent, a former employee of the Department of the Air Force who was fired one year after testifying before Congress regarding budget mismanagement in the Air Force.[59]Concerns that he was being terminated in retaliation prompted public hearings and media attention on the matter, which in turn presented the respondent with the opportunity to simply be reassigned to a different governmental department instead of termination.[60] An internal memo prepared by White House aide Alexander Butterfield dismissed the idea of reassignment, suggesting that the respondent should be made to suffer for his disloyalty.[61] Following the finding from the Civil Service Commission that his dismissal violated civil service regulations, the respondent sued various White House aides and Department of Defense officials.[62] In 1978, five years after initially filing the suit, the respondent amended it to include President Richard Nixon as a defendant.[63] The district court denied the petitioners’ motions for summary judgment, finding that the respondent had stated a cause of action.[64] As to President Nixon, the district court determined that he was not entitled to absolute immunity and, relying on Halperin, the D.C. Circuit affirmed.[65]

In reversing this decision and concluding that the President was entitled to absolute immunity from civil liability, the Supreme Court employed the functional approach that it had articulated in Scheuer v. Rhodes.[66] This approach to immunity provides two tiers of immunity for executive officers and employees.[67] Under the functional approach, most executive branch officials are given qualified immunity.[68] However, some officials have such a wide scope of responsibilities and are required to handle such sensitive matters that their functionality can only be preserved through a grant of absolute immunity.[69] Put differently, the functional approach grants immunity to actors based on the nature of the act, as opposed to the office they hold.[70] Thus, while prosecutors are entitled to absolute immunity for their official acts such as commencing criminal proceedings, they are entitled only to qualified immunity for their unofficial acts, such as manufacturing evidence.[71]

The Fitzgerald Court acknowledged that its opinion in Butz specifically left open the possibility that an executive official could receive absolute immunity based on public policy.[72] Because most of the Court’s immunity decisions up to that point drew on principles of the common law, and because the common law roots of immunity developed long before the inception of the presidency, the Court examined the scope of presidential immunity through the lens of constitutional history and public policy.[73] The Court emphasized the special functions undertaken by the President and concluded that a well-functioning executive branch, in accordance with the Framers’ vision, meant that the presidency could not be paralyzed by a looming fear of subsequent liability for its actions.[74] This conclusion, while based on the history of the executive branch, was woven into the Court’s discussion of public policy justifications for presidential immunity.[75] On the topic of public policy, the majority again stressed the uniqueness of the presidency as the only branch of government headed by a single individual and how the president is often required to develop policy stances on extremely salient topics.[76] Thus, the Court ultimately concluded that the President’s, and the public’s, interest in preserving the swiftness of the executive branch countenanced a grant of absolute immunity from civil liability over actions taken that are within the outer limits of the president’s responsibilities.[77] The Court has since emphasized that making the president or other government officials liable for actions taken in the course and scope of their office could incentivize mass litigation against them.[78] In sum, the upshot of Nixon v. Fitzgerald is that the president is entitled to absolute immunity from civil sanctions over actions taken that are within the outer limits of the president’s responsibilities.[79]

B. The Clinton Years

Following the Nixon administration, the presidential immunity jurisprudence lay relatively undisturbed until 1997 when the Court decided Clinton v. Jones.[80] In Jones, the conduct at issue was alleged to have occurred when Bill Clinton was the governor of Arkansas, yet the action did not commence until after Clinton was elected President.[81]Clinton unsuccessfully attempted to argue that the President should enjoy temporary absolute immunity while in office over all actions, regardless of whether those actions were taken while in office.[82] In rejecting this argument, the Supreme Court largely rested its decision on prior presidential immunity cases, such as Nixon v. Fitzgerald, to conclude that the president has never been understood to enjoy immunity over unofficial actions.[83] The Court acknowledged the unique posture of the president within the federal schema but concluded that allowing a suit of this nature to proceed would not erode the separation of powers.[84] Thus, by balancing the myriad interests involved, the Court determined that the President was not entitled to absolute immunity over actions that occurred before taking office.[85] After the dust of the Clinton and Nixon administrations had settled, the state of presidential immunity was such that the president enjoyed absolute immunity from civil sanctions over only those actions taken while in office that were within the outer limits of the president’s responsibilities.[86] Then came Donald Trump.[87]

C. The Trump Presidency

On August 1, 2023, Donald Trump was indicted by a grand jury on four counts, alleging that he conspired to defraud the United States (Count One), conspired to obstruct an official proceeding (Count Two), attempted to, and did successfully, obstruct an official proceeding (Count Three), and conspired against rights (Count Four).[88] Count One of the indictment accuses Trump of conspiring with six others to use fraudulent slates of electors to send false certificates to Congress certifying that Trump had won states that he had actually lost, all in the hopes of convincing Vice President Mike Pence to trust the fraudulent slates over the authentic slates of electors.[89] Count Two alleges that much of the conduct that formed the basis for Count One also served as the basis for Count Two in that Trump’s efforts to subvert the results of the 2020 election through fraudulent means furthered a conspiracy to obstruct the election certification that took place on January 6.[90] Count Three alleges that the conspiracy outlined in Count Two was attempted and completed.[91]The fourth and final count alleges that Trump conspired with others to violate some members of the electorate’s right to vote and have their votes be counted, either through efforts to stop the counting of ballots or through efforts to de-certify the electoral results of targeted states.[92]

On October 5, 2023, Trump motioned to dismiss the indictment, claiming that the allegations set out in the indictment constituted action that lay within the outer perimeter of his responsibilities and was thus shielded from prosecution by absolute immunity.[93] Though the Supreme Court had yet to address the immunity afforded to presidents in criminal proceedings, Trump stressed that the considerations that warranted absolute immunity for the President in civil actions were surely present in the criminal context.[94] The district court ultimately rejected Trump’s motion to dismiss, and the United States Court of Appeals for the D.C. Circuit affirmed this decision.[95] Thereafter, the Supreme Court granted certiorari to decide the scope of presidential immunity in a criminal prosecution arising from action taken while in office.[96]

The government argued that presidential immunity only applies to civil suits and that the President enjoys no immunity whatsoever in criminal proceedings.[97] By contrast, Trump argued that presidents are entitled to absolute immunity in criminal proceedings over any action taken in office that lay within the outer limits of the President’s duties.[98]

D. Presidential Immunity from Criminal Prosecution

Chief Justice John Roberts wrote the 6-3 majority opinion, which announced a three-tiered structure for presidential immunity.[99] In the first tier, the president enjoys absolute immunity over official actions taken while in office.[100] These are described as actions that are at the core of the president’s responsibilities.[101] Chief Justice Roberts reasoned that impeding these actions with the threat of criminal sanctions would violate the separation of powers and slow down what is meant to be an energetic executive.[102] In the second tier, the president enjoys the presumption of immunity over actions taken while in office that are within the outer limits of his responsibilities.[103] The Court does, however, suggest that this presumption of immunity can be rebutted if the prosecution can show that imposing criminal liability for the act in question would not intrude upon the functionality of the presidency.[104] In the third tier, the president enjoys no immunity over unofficial actions taken while in office.[105] Conduct that lies within this space is too remotely removed from the president’s responsibilities to be shielded by immunity.[106] Indeed, the Court identifies that the nature of a president’s action in this tier is such that the traditional justifications in support of immunity cease to exist.[107]

In so holding, the Court concluded that at least some of Trump’s actions were official in nature and thus shielded by absolute immunity.[108] Ultimately, the Court declined to dismiss the indictment against him.[109] Instead, it vacated the lower court’s decision with instructions to determine which of Trump’s acts were protected by absolute and presumed immunity.[110] Notwithstanding the special counsel’s superseding indictment of Trump, there still remains uncertainty as to which actions are entitled to what level of immunity.[111]

III. The Youngstown-Trump Model

Justice Jackson’s Youngstown concurrence provides a framework in which to assess the constitutionality of presidential action vis-à-vis separation of powers.[112] Trump v. United States addresses the scope of presidential immunity from criminal prosecution arising out of presidential action.[113] With executive power ever increasing, it is imperative to develop a model that can harmonize both Youngstown and Trump v. United States in order to give reviewing courts more structure to assess what level of immunity the president is entitled to when his actions are the subject of criminal prosecution.[114] The three scenarios of presidential action articulated by Justice Jackson in his concurrence in Youngstown can be “mapped onto” the three tiers of presidential immunity announced by the Court in Trump v. United States. Specifically, the two fit together as follows:

A. Maximal Authority Gives Absolute Immunity

In Justice Jackson’s first scenario, the president acts pursuant to an express grant of Congress or the Constitution.[115] A president acting pursuant to the office’s core responsibilities would necessarily fall into this category because the president’s constitutionally granted powers are considered his core powers.[116] A president acting pursuant to a grant of Congress would also necessarily fall into this category because Congress is barred from delegating legislative authority to the executive branch.[117] The justifications supporting absolute immunity, therefore, are no more crystallized than in this scenario.[118] Congress cannot subject the presidency to criminal prosecution over actions taken to fulfill his core duties because doing so would not only violate the separation of powers but would also inflict a chilling effect unto the presidency whereby the president is impeded from acting for fear of later criminal liability.[119]

B. Presumed Immunity in the Zone of Twilight

In Justice Jackson’s second scenario, the president’s action presents a more complex question as his authority to act may run concurrently with a legislature that has not spoken on the issue.[120] Because it is unclear whether prosecution for these actions would violate the separation of powers, a more rigorous analysis would need to be undertaken to carefully consider the facts and interests of the coordinate branches.[121] To receive the presumption of immunity, the president will need to show that the action taken was within the outer perimeter of his responsibilities.[122]Such an action will likely have to be supported by either Article II’s Vesting Clause, Take Care Clause, or the aggregation of both as they serve as the executive’s analog to Congress’s Necessary and Proper Clause.[123] Due to the unique nature of the presidency, and the sensitive matters it is frequently involved in, a president’s actions in this scenario will get the presumption of immunity unless the prosecution can show that prosecuting the president for these actions would neither destabilize the separation of powers nor impair the president’s functioning.[124]

C. Unofficial Acts Enjoy Either Presumptive or No Immunity

In Justice Jackson’s third scenario, the president acts against the consent of Congress.[125] In this scenario, it is possible for the president to argue that, while his actions defied the intent of Congress, they nonetheless existed within the outer perimeter of his official duties and are thus entitled to the presumption of immunity.[126] It is also possible that the president’s actions here are deemed too remote from the president’s responsibilities, either temporally as with Clinton v. Jones or functionally such that the president’s actions are deemed unofficial and therefore given no immunity.[127] Thus, a balancing approach must be undertaken here as well, where the nature of the act is weighed against the interests of the branches and public policy concerns.[128]

**D. A Practical Application of the Proposed Youngstown-Trump Model**

As a practical application of this model, one need only look as far as the conduct that gave rise to the litigation in Youngstown itself.[129] The President authorized the seizure of the steel industry to forcibly stop a labor strike and continue producing steel needed for the war effort.[130] The majority agreed that the President exceeded the scope of his authority by acting absent any power conferred by the Constitution or by Congress.[131] Despite the fact that the President was actively defying the will of the Constitution and Congress, neither he nor Sawyer were amenable to criminal prosecution for this action.[132] No criminal proceedings were ever initiated against President Truman for his seizure of the steel industry.[133] His conduct, though not authorized by a constitutional or statutory provision, remained within the outer limits of his responsibilities because it was not manifestly outside of his authority.[134] As the Commander in Chief, he possessed the mandate to deploy troops and organize a war effort.[135] This necessarily includes the power to allocate military resources, regardless of whether Congress has formally declared war.[136]

This is the type of scenario where the quick action only found in the Executive was necessary.[137] The separation of powers doctrine cautions against miring the presidency in fear of subsequent criminal liability in these types of situations.[138] The facts of Clinton v. Jones provide a useful illustration of presidential action that falls within the third scenario.[139] If the facts in Clinton occurred during Clinton’s presidency, and were determined to be criminal sexual misconduct, then the Youngstown-Trump model suggests that this action would fall into the third scenario, and the President would receive no immunity.[140] Engaging in sexual misconduct is neither a core responsibility of the presidency nor is it within the outer limits of the President’s responsibilities.[141] Functionally, sexual misconduct is not an executive action, and prosecution for it would not unduly constrain the functionality of the presidency.[142] Thus, the separation of powers is preserved, and the public policy justifications would not be undermined.[143]

Conclusion

The trend towards increasing executive power means that presidents have been engaging in a wider range of action over time.[144] With scant guidance from the Supreme Court on the line between official and unofficial action, the scope of presidential immunity as to criminal prosecutions is, at the moment, opaque.[145] The model set forth in this Note proposes a framework that integrates the principles of Justice Jackson’s Youngstown concurrence with the Trump v. United States majority’s three-tiered approach to immunity to present a unified and cogent schema for assessing possible criminal liability associated with presidential action.[146]

[1] See Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1819 (1996).

[2] See Lisa Manheim & Kathryn A. Watts, Reviewing Presidential Orders, 86 Univ. Chi. L. Rev. 1743, 1745 (2019) (“Prior to Trump’s entrance into the White House, litigants only occasionally brought lawsuits directly and immediately against the initiatives contained in a president’s written orders.”).

[3] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–39 (1952) (Jackson, J., concurring); David B. Froomkin, The Nondelegation Doctrine and the Structure of the Executive, 41 Yale J. on Reg. 60, 94 (2024) (“The prevailing framework for judicial review of presidential action is the Youngstown framework.”).

[4] Youngstown, 343 U.S. at 635–39 (Jackson, J., concurring).

[5] See, e.g., Michael L. Shenkman, Talking About Speech or Debate: Revisiting Legislative Immunity, 32 Yale L. & Pol’y Rev. 351, 424–25 n.377 (2014) (citing Cheney v. U.S. Dist. Ct. for the D.C., 542 U.S. 367, 382 (2004)).

[6] See Trump v. United States, 144 S. Ct. 2312, 2326 (2024).

[7] See infra Part I (discussing the historical underpinnings of the presidency and presidential immunity).

[8] See infra Part II (analyzing the line of cases interpreting the limits of presidential immunity).

[9] See infra Part III (proposing an integrated model to determine possible criminal liability associated with presidential action).

[10] See JoLissa Jones, Merrick Garland and the Stalemate Senate: Does the Senate owe Nominees a Vote?, 42 T. Marshall L. Rev. Online 3, 16 (2018).

[11] See Robert C. Sarvis, Legislative Delegation and two Conceptions of the Legislative Power, 4 Pierce L. Rev. 317, 331–32 (2006).

[12] See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 523–24 (1989) (explaining that the Confederation period convinced the Framers that a slow legislative process was preferable to a fast-paced one).

[13] See The Federalist No. 70 (Alexander Hamilton) (arguing that “Energy in the Executive” is essential to the protection against foreign attacks, steady administration of the laws, and the security of liberty); see also James P. Pfiffner, Federalist No. 70: Is the President too Powerful?, 71 Pub. Admin. Rev. 112, 113 (2011) (observing that the Framers envisioned a presidency “independent” of the legislature).

[14] See The Federalist No. 70, supra note 13 (arguing that a “feeble Executive” makes for a bad government).

[15] See id.

[16] Id.

[17] See U.S. Dept. Lab. Bureau of Lab. Stats., Analysis of Work Stoppages during 1952, 17 tbl. 1.1 (June 4, 1953), https://www.bls.gov/wsp/publications/annual-summaries/pdf/work-stoppages-1952.pdf (showing the number of steelworkers participating in the strike).

[18] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582–83 (1952).

[19] See id. at 583; see also Exec. Order No. 10340, 17 Fed. Reg. 3139 (1952) (ordering the Secretary of Commerce to seize steel mills across the country to avoid the impending strike); Harry S. Truman Library Museum 10340, https://www.trumanlibrary.gov/library/executive-orders/10340/executive-order-10340 (last visited Sept. 2, 2024) (providing an unabridged version of Executive Order No. 10340).

[20] See Youngstown, 343 U.S. at 583.

[21] Id.

[22] Id.

[23] See id. (“[T]he United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had ‘inherent power’ to do what he had done.”).

[24] See Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, 577 (D.D.C. 1952) (granting plaintiffs’ motion for preliminary injunction). But see Sawyer v. United States Steel Co., 197 F.2d 582, 582 (D.C. 1952) (staying the district court’s order).

[25] See Youngstown, 343 U.S. at 584.

[26] Id. at 589.

[27] Id. at 585 (“The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”).

[28] Id. at 586 (“There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.”).

[29] Id. (“When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.”).

[30] Id. at 587 (“It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution.”).

[31] See id.; U.S. Const. art. II, § I, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”); U.S. Const. art. II, § III (“[H]e shall take Care that the Laws be faithfully executed.”); U.S. Const. art II, § II, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”).

[32] See Youngstown, 343 U.S. at 647 (Frankfurter, J., concurring) (explaining the administration’s argument).

[33] See id. at 587–88 (“[W]e cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. . . . The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.”).

[34] See, e.g., Sarah H. Cleveland, Wartime Security and Constitutional Liberty: Hamdi Meets Youngstown: Justice Jackson’s Wartime Security Jurisprudence and the Detention of “Enemy Combatants,” 68 Alb. L. Rev. 1127, 1128 (2005) (“Although Justice Black's majority opinion in Youngstown dealt the fatal blow to President Truman's effort to seize the steel mills during the Korean War, it was Justice Jackson’s concurrence that established the starting framework for analyzing all future foreign relations and individual liberties problems.”).

[35] See Youngstown, 343 U.S. at 635–38 (Jackson, J., concurring).

[36] Id. at 635–36.

[37] Id. at 636–37 (“If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.”).

[38] Id. at 637.

[39] Id.

[40] Id. (“In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”).

[41] Id. n.3 (highlighting cases in which presidential action in the second scenario either was or was not rejected by the courts due to different variables present in each case).

[42] Id. at 637–38.

[43] Id.

[44] Id. at 638–39.

[45] Id.

[46] Id. at 655 (“No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.”).

[47] See Trump v. United States, 144 S. Ct. 2312, 2329 (2024).

[48] See infra Section II.A.

[49] See, e.g., Trump, 144 S. Ct. at 2376–78 (Jackson, J., dissenting) (describing the interests of the branches).

[50] See infra Sections II.A–D.

[51] See Erwin Chemerinsky, Justice Delayed is Justice Denied, 2 Nexus J. Op. 24, 31 (1997) (“[N]o provision of the Constitution mentions presidential immunity from criminal or civil suits.”).

[52] Compare U.S. Const. art. I (providing for legislative immunity), with U.S. Const. art II (remaining silent as to presidential immunity), and U.S. Const. art. III (remaining silent as to judicial immunity).

[53] See, e.g., Bradley v. Fisher, 80 U.S. 335 (1871) (holding that a judge could not be held liable in a civil action for conduct relating to his judicial actions).

[54] See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982).

[55] See Butz v. Economou, 438 U.S. 478, 507 (1978).

[56] See Halperin v. Kissinger, 606 F.2d 1192, 1213 (D.C. 1979) (reasoning that “the doctrine of qualified immunity . . . makes allowance for the additional demands on the time and attention of the Chief Executive”). But see Fitzgerald, 457 U.S. at 756 (holding that the President is entitled to absolute immunity over official actions within the “outer perimeter” of presidential responsibility, overruling Halperin on this point without explicitly saying so).

[57] See, e.g., Malley v. Briggs, 475 U.S. 335, 340 (1986) (“Our cases also make plain that ‘[for] executive officers in general, . . . qualified immunity represents the norm.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982))).

[58] See Fitzgerald, 457 U.S. at 731; see also Mississippi v. Johnson, 71 U.S. 475 (1867) (being the first Supreme Court case discussing presidential immunity).

[59] Fitzgerald, 457 U.S. at 734.

[60] Id. at 734–35.

[61] Id. at 735–36.

[62] Id. at 737–39.

[63] Id. at 740.

[64] Id.

[65] Id. at 741.

[66] Id. at 746 (citing Scheuer v. Rhodes, 416 U.S. 232, 243 (1974)) (defining the functional approach).

[67] Id.

[68] Id. (“To most executive officers Scheuer accorded qualified immunity.”).

[69] Id.

[70] See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal citations and quotations omitted) (“[W]e have applied a functional approach, which looks to the nature of the function performed, not the identity of the actor who performed it.”).

[71] Compare Imbler v. Pachtman, 424 U.S. 409, 424 (1976) (giving absolute immunity to a prosecutor for the initiation of a prosecution), with Buckley, 509 U.S. at 276–77 (giving qualified immunity to a prosecutor for making false assertions of evidence to the press).

[72] See Fitzgerald, 457 U.S. at 747 (internal citations omitted) (“In Butz itself we . . . left open the question whether other federal officials could show that public policy requires [absolute immunity].”).

[73] Id. at 747–48.

[74] Id. at 749–50.

[75] Id. at 748 (“Historical inquiry thus merges almost at its inception with the kind of ‘public policy’ analysis appropriately undertaken by a federal court.”).

[76] Id. at 751–52.

[77] Id. at 755 (“In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. . . . But the Court also has refused to draw functional lines finer than history and reason would support.”).

[78] See Emily Fromison, Hafer v. Melo: Personal Liability of Officers Under 42 U.S.C. § 1983, 72 B.U. L. Rev. 417, 419 (1992) (“The rationale for striking a balance between absolute immunity and no immunity for government officials encompasses the desire to deter wrongful behavior of government officials without ‘creat[ing] perverse incentives that operate to inhibit officials in the proper performance of their duties.’” (citing Forrester v. White, 488 U.S. 219, 223 (1988)).

[79] See Fitzgerald, 457 U.S. at 755–56.

[80] See Clinton v. Jones, 520 U.S. 681 (1997).

[81] Id. at 684.

[82] The majority explained:

The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting President's submissions, we conclude that they must be rejected.

Id.

[83] Id. at 693–94 (explaining that the Court’s reasoning in prior presidential immunity cases giving immunity from civil liability for official acts “provides no support for an immunity for unofficial conduct”).

[84] Id. at 698–99 (“We have . . . long recognized the ‘unique position within the constitutional scheme’ that this office occupies . . . It does not follow, however, that separation of powers principles would be violated by allowing this to proceed.” (quoting Fitzgerald, 457 U.S. at 749)).

[85] Id. at 704.

[86] See Blassingame v. Trump, 87 F.4th 1, 34 (D.C. 2024) (Rogers, J., concurring in part) (citing Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982); Clinton, 520 U.S. at 693–95)) (“The Supreme Court has twice addressed the scope of absolute presidential immunity in the context of suits for civil damages . . . both decisions emphasize that the President has absolute immunity from civil damages suits that arise from his execution of official presidential duties.”).

[87] See generally Nia Prater, The Case(s) Against Donald Trump, Intelligencer (July 15, 2024), https://nymag.com/intelligencer/article/what-are-the-legal-cases-against-donald-trump.html (detailing the various civil and criminal litigation that Donald Trump is involved in, including those cases in which he has asserted immunity).

[88] Indictment at 1, United States v. Trump, No. l:23-cr-00257-TSC (D.D.C. filed Aug. 1, 2023).

[89] Id. at 4–6.

[90] Id. at 43.

[91] Id. at 44 (emphasis omitted) (“[T]he defendant, Donald J. Trump, attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.”) .

[92] Id. at 45 (describing the substantive charge underlying Count Four); see, e.g., id. at 5 (“[O]n the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”).

[93] Motion to Dismiss Indictment Based on Presidential Immunity at 21, United States v. Trump, No. l:23-cr-00257-TSC (D.D.C. filed Oct. 5, 2023).

[94] Id. at 10 n.2 (“[T]he fact that the doctrine of Presidential immunity is rooted in the separation of powers dictates that immunity must extend to criminal prosecution as well as civil liability.”).

[95] See Daniel Barnes & Zoe Richards, Judge Denies two of Trump’s Motions to Dismiss his Federal Election Interference Case, NBC News (Dec. 1, 2023, 9:14 PM), https://www.nbcnews.com/politics/donald-trump/judge-denies-two-trumps-motions-dismiss-federal-election-interference-rcna127720; United States v. Trump, 91 F.4th 1173, 1208 (D.C. 2024) (per curiam) (rejecting Trump’s immunity claims and affirming the district court’s decision to deny his motion to dismiss the indictment) .

[96] See Adam Liptak, Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April, N.Y.T. (Feb. 28, 2024), https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html.

[97] See Brief for the United States at 39, Trump v. United States, 144 S. Ct. 2312 (2024) (“Fitzgerald’s reasoning does not support petitioner's claim of absolute immunity from criminal prosecution.”).

[98] Brief of Petitioner at 23, Trump v. United States, 144 S. Ct. 2312 (2024) (arguing for absolute presidential immunity while also adding the caveat that an impeachment could strip a President of immunity over the action that gave rise to the impeachment).

[99] See generally Trump v. United States, 144 S. Ct. 2312, 2328-32 (2024) (discussing the three tiers of immunity).

[100] See id. at 2319 (“[T]he President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”).

[101] See id. at 2327 (“At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.”).

[102] See id. at 2329 (justifying presidential immunities and privileges as a safeguard against a dysfunctional government that would result from an unduly burdened executive branch).

[103] See id. at 2331 (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”).

[104] See id. at 2331–32 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).

[105] See id. at 2332 (“As for a President’s unofficial acts, there is no immunity.”).

[106] See id.

[107] Id. (citing Forrester v. White, 484 U.S. 219 (1988)).

[108] See id. at 2333 (concluding that Trump’s conversations with the acting attorney general are protected by absolute immunity).

[109] Id. at 2339.

[110] Id.

[111] See generally Superseding Indictment, United States v. Trump, No. 1:23-cr-00257-TSC (D.D.C. filed Aug. 27, 2024) (indicting Trump based on much of the same conduct alleged in the first indictment but omitting any conduct that the Supreme Court explicitly concluded was official action in Trump, 144 S. Ct. at 2333).

[112] See Elizabeth Bahr & Joseph Blackman, Youngstown’s Fourth Tier: Is There a Zone of Insight Beyond the Zone of Twilight?, 40 U. Mem. L. Rev. 541, 542–43 (2010) (“Justice Jackson’s seminal framework in Youngstown has provided the Supreme Court with a taxonomy to analyze separation-of-powers issues since its creation over fifty years ago.”).

[113] See Trump, 144 S. Ct. at 2327.

[114] See, e.g., Flaherty, supra note 1, at 1819 (describing increasing executive power).

[115] See Youngstown, 343 U.S. 579, 635–36 (1952) (Jackson, J., concurring).

[116] See Trump, 144 S. Ct. at 2352 (Barrett, J., concurring in part) (“[T]he Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct.”).

[117] See Froomkin, supra note 3, at 65 (“The formalist logic behind the nondelegation doctrine is that the Article I Vesting Clause confers on Congress and only Congress these legislative powers, and consequently it would violate the Constitution for some other actor to exercise legislative power, even if Congress approved of such a delegation.”).

[118] See Trump, 144 S. Ct. at 2330 (recognizing that presidential immunity is historically rooted in a fear that an inundation of proceedings would distract the President from his responsibilities).

[119] Id. at 2330–31 (internal quotations omitted) (“The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the bold and unhesitating action required of an independent Executive.”).

[120] See Youngstown, 343 U.S. at 637.

[121] See Trump, 144 S. Ct. at 2339 (discussing the fact that this is a fact-specific analysis and remanding to the district court to conduct such analysis).

[122] Id. at 2331 (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”).

[123] See Steven G. Calabresi & Gary Lawson, The Rule of law as a law of law, 90 Notre Dame L. Rev. 483, 501 (2014) (“In essence, the Article II grant of executive power to the President is qualified by the principle of reasonableness so that it effectively reads: "the executive power [necessary and proper for carrying into execution presidential functions] shall be vested in a President of the United States.").

[124] Trump, 144 S. Ct. at 2331–32 (explaining that the presumption of immunity can be rebutted if the prosecution can show that a criminal proceeding would not impede the authority and functions of the executive branch).

[125] See Youngstown, 343 U.S. at 637–38.

[126] See Trump, 144 S. Ct. at 2334 (articulating that a President’s action, even if in violation of a generally applicable federal statute, is not unofficial per se) (citing Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982)).

[127] See Clinton v. Jones, 520 U.S. 681, 684 (1997) (rejecting presidential immunity from civil liability for actions that occurred prior to taking office); see also Trump, 144 S. Ct. at 2340 (“There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”).

[128] See Trump, 144 S. Ct. at 2340 (describing the factors to be weighed).

[129] Youngstown, 343 U.S. at 582–84.

[130] Id. at 582–83.

[131] Id. at 585–89 (explaining why the President’s actions were not authorized by Congress or the Constitution).

[132] Memorandum Opinion for the Attorney General, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 254 n.30 (2000) (noting that, had President Truman been subject to criminal liability for his executive order, there likely would have been much more resources diverted to defending him in his criminal case than there were to defend him from his civil case).

[133] Id.

[134] See Trump v. United States, 144 S. Ct. 2312, 2333 (2024) (internal quotations omitted) (concluding that presidential action, “even when not obviously connected to a particular constitutional or statutory provision,” can still be immune from liability so long as that action is not “manifestly or palpably beyond [his] authority” (citing Blassingame v. Trump, 87 F.4th 1, 13 (D.C. 2023))) ; see also Youngstown, 343 U.S. at 696–97 (Vinson, J., dissenting) (using a prior incident in which President Theodore Roosevelt ordered the seizure of various industries to avoid work stoppages to argue that presidential seizures of private industries are not unprecedented).

[135] Youngstown, 343 U.S. at 632 (Douglas, J., concurring) (“Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy.”).

[136] See Flaherty, supra note 1, at 1786 (describing how Congress provides the funding for the military resources that the President controls).

[137] Youngstown, 343 U.S. at 682 (Vinson, J., dissenting).

[138] See Trump, 144 S. Ct. at 2344 (explaining how the separation of powers warns against prolonged proceedings against a president for fear that this would cause the President to become unduly precautious).

[139] See Clinton v. Jones, 520 U.S. 681, 684–85 (1997).

[140] See, e.g., Alberto R. Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. U.L. Rev. 905, 937 (2019) (“[A] President can be subject to criminal liability for unofficial acts - actions while in office that are unrelated to presidential duties and that are motivated by personal or political gain.” (citing Clinton, 520 U.S. at 685–86)).

[141] See, e.g., Clinton, 520 U.S. at 686 (“[I]t is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.”).

[142] See Nixon v. Fitzgerald, 457 U.S. 731, 753 n.32 (1982) (stating that one of the most persuasive reasons in support of official immunity is the desire to avoid an unduly cautious president).

[143] Id.

[144] See Flaherty, supra note 1, at 1819.

[145] See Julia Reinstein, What Constitutes an ‘Official Act’ by the President, ABC News (July 1, 2024), https://abcnews.go.com/Politics/constitutes-official-act-president/story?id=111583865 (“What constitutes an ‘official’ versus an ‘unofficial’ act by the president is not precisely defined in the opinion, and Chief Justice John Roberts acknowledged it could raise ‘difficult questions.’”).

[146] See generally, supra Part III (proposing the Youngstown-Trump model and providing a practical application).

Harmonizing the Three Scenarios of Presidential Action in Justice Jackson’s Youngstown Concurrence with the Three Tiers of Immunity in Trump v. United States