Hamilton Warned Us About Presidential Immunity
Just like with the Loper Bright case which overturned Chevron, as I discussed in my prior article[1], SCOTUS has once again reached back to The Federalist Papers to present the justification for their decision on Presidential Immunity in Trump v. United States[2]. In Trump, SCOTUS quoted Hamilton to explain that “The Framers designed the Presidency to provide for a ‘vigorous’ and ‘energetic’ Executive. The Federalist No. 70, pp. 471–472 (J. Cooke ed. 1961) (A. Hamilton).”
Unfortunately, just like they did in the Loper Bright case, SCOTUS also did not delve deep enough into The Federalist Papers for a discussion on Presidential Immunity. In fact, they skipped right over the prior Letter where Hamilton gives a detailed discussion on presidential powers.
In Letter 69, Hamilton lists the eight main differences between the King of England and the U.S. President with one of those being a complete lack of personal immunity for the U.S. President. According to Hamilton, the President “ought to be personally responsible for his behaviour in office . . . .” Kings, on the other hand, he explained, are considered to be “sacred and inviolable” so there is “no punishment to which he can be subjected without involving the crisis of a national revolution,” but the U.S. President is NOT a king.[3]
Unfortunately, SCOTUS decided to ignore Hamilton completely on this important point. Instead, SCOTUS thought it would be better to just go ahead and amend the U.S. Constitution once again with their decision rather than follow our U.S. Constitution. In so doing, SCOTUS created a convoluted “official” and “unofficial” duties two-part test that the courts will litigate for many years in an effort to try and figure out what the distinction between the two even means. As with so many other of its prior rulings, the Trump decision completely undermines our U.S. Constitution by using standards and qualifications that are not mentioned anywhere in the document itself.
As I explained in my prior article[4], according to the Framers, granting immunity to the President is dangerous to the Republic – “If the President were to be immune for his actions like ‘the monarchy of Great-Britain’, Hamilton continued, ‘it would serve to destroy, or would greatly diminish the intended and necessary responsibility of the chief magistrate himself’ in our ‘American republic.’” [5]
The Constitution does not grant any kind of immunity for the President, but SCOTUS is now inserting that word into our U.S. Constitution in its decision in Trump without going through the amendment process. Not only does the Constitution NOT provide for any Presidential Immunity, but it also imposes personal liability on the President under the Impeachment Clause.
The Constitution states unequivocally that a U.S. President can be removed from office through impeachment upon “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” and be subject to criminal litigation once removed.[6]
Hamilton explained it this way – “The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”[7] Obviously, the Framers did not want a President to have immunity but expected that the President would be liable for crimes committed while in office and that he should be tried as a matter of law once he is removed from office.
SCOTUS, on the other hand, is arguing just the opposite in the Trump decision. Citing an earlier case, the Trump court explained that “The Court’s ‘dominant concern’ was to avoid ‘diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.’ Clinton v. Jones, 520 U. S. 681, 694, n. 19.” This reasoning flies in the face of what the Framers expected.
They expected that the President’s attention should not be diverted from “worry” during his “decisionmaking process”. They wanted to ensure that there was no immunity so that he would be extremely careful to consider all of the ramifications of his decisions.
Removing that so-called “diversion” from the decisionmaking process means that a President will never have to worry about the ramifications of any of his decisions made during his “official” capacity. You know decisions such as forcing people to take a dangerous experimental injection because of a so-called national emergency that was authorized by Congress; or killing a bunch of innocent people at a wedding with a drone strike; or even killing millions of people simply by pushing a nuclear button.
Not surprising, conservatives everywhere are hailing this decision as a big win! Yet, this is the kind of short-sighted and hypocritical thinking that will “serve to destroy” our Constitutional Republic just like Hamilton warned because it continues to legitimize amendments to our U.S. Constitution by court opinion, and it removes the liability from the President making him more like a monarch than he is already.
Do you think that monarchs are ever diverted in their “decisionmaking” by worrying about the ramifications of their decisions on the public? Of course not, because they are monarchs, which is exactly why Hamilton painstakingly points out the differences between a monarchy and the U.S. President in Letter 69. One has to wonder why SCOTUS skipped over that letter entirely in its decision only to quote Hamilton out of context to justify it.
The right to Presidential Immunity is just as nonexistent in our U.S. Constitution as was a right to an abortion. Yet, conservatives fought Roe v. Wade because they knew that SCOTUS had created that right with their decision thereby amending the Constitution with it. The truly objective conservative can see that granting immunity to the President by their opinion in Trump is no different than creating a right to an abortion in Roe v. Wade. Hypocritical conservatives are hailing the Trump decision as a victory only because it benefits them politically in the short run.
Here's the thing, when the next Democratic president declares a Congressionally authorized emergency and orders a large segment of our society to be confined in detention camps (i.e., those citizens who identify as MAGA)[8], how will conservatives feel about SCOTUS’ decision in Trump then do you suppose?
Madame Publius
[1] Madame Publius, A Step In The Right Direction, July 2, 2024
[2] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
[3] Hamilton, The Federalist Papers, Ltr. 69.
[4] Madame Publius, There is No Presidential Immunity in a Constitutional Republic, April 24, 2024.
[5] Hamilton, The Federalist Papers, Ltr. 70, ¶20.
[6] U.S. CONST. Art. II, §4.
[7] Hamilton, The Federalist Papers, Ltr. 69, ¶4.
[8]https://www.reddit.com/r/conspiracy/comments/1dpepil/prison_camps_for_political_dissidents_in_all_50/; https://www.infowars.com/posts/breaking-federal-contractor-exposes-massive-internment-camps-being-built-in-all-50-states-for-trump-supporters-ahead-of-martial-law/;