The Shadow of Immunity: How a Supreme Court Ruling Could Empower Presidents to Act Above the Law
Last week, the Supreme Court delivered a sweeping and controversial ruling in Trump vs. United States, granting broad legal immunity to U.S. Presidents for their actions while in office. This decision, stemming from former President Donald Trump’s ongoing election interference case, has sparked widespread concern among legal experts and civil liberties advocates, who fear it could dramatically reshape the balance of power within the federal government.
The ruling, while vague, established two types of legal immunity enjoyed by the President: absolute immunity and presumptive immunity. Absolute immunity applies to crimes committed while performing "official" duties, effectively shielding the President from prosecution. The Court’s decision, however, failed to define explicitly what constitutes "official" activity, leaving the interpretation open to debate and potential legal battles for years to come.
Justice Sonia Sotomayor, in her dissenting opinion, sounded the alarm, providing stark examples of what she believes the ruling could enable: "Orders the Navy’s SEAL Team Six 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."
While Sotomayor’s words are stark, the question remains: Could a President, under the new ruling, order the killing of political rivals with impunity?
The potential for such a scenario appears chillingly close to reality when we consider the existing precedent of presidential drone strikes against American citizens.
The Unsettling Precedent of Drone Strikes
During the War on Terror, the Obama administration established a policy authorizing drone strikes against American citizens deemed "terrorist threats," even outside of recognized war zones. The most prominent example of this policy remains the killing of Anwar al Awlaki, an American cleric accused of being a high-level al-Qaeda operative, and Samir Khan, a U.S.-citizen blogger. This operation, while shrouded in secrecy, raised serious concerns about the President’s unchecked power and the erosion of constitutional rights.
The legal foundation for this policy rested on the Authorization for the Use of Military Force (AUMF), a law enacted after the 9/11 attacks that granted broad authority for the U.S. to combat terrorism. The Obama administration argued that the AUMF allowed them to target individuals deemed threats to national security, including American citizens, without the traditional due process guarantees.
In a much-criticized move, the Obama White House eventually released a redacted version of its drone strike policy. This document outlined preconditions for targeting individuals: "near certainty" that a "high-value terrorist" was present, a lack of feasible capture options, and an assessment that the country where the strike was being considered could not effectively address the threat.
Despite these guidelines, the policy faced widespread condemnation from civil rights groups, who argued that it constituted a flagrant disregard for constitutional protections. They argued that the President’s ability to unilaterally execute American citizens without due process was deeply troubling and could easily be abused.
The Supreme Court’s New Ruling: A Dangerous Expansion of Presidential Power?
The Supreme Court’s Trump vs. United States decision, despite failing to explicitly address drone strikes, significantly alters the landscape surrounding presidential accountability. Many legal experts, like Jeff Rogg, a senior research fellow at the University of Southern Florida, argue the ruling could embolden presidents to act with less scrutiny and potentially lead to an expansion of existing powers, including those related to drone strikes. They fear that with the presumption of immunity for acts deemed "official," presidents will feel less pressure to adhere to the rule of law when acting on national security grounds.
Hina Shamsi, director of the ACLU’s National Security Project, echoes these concerns, stating that the Supreme Court decision "doesn’t change anything about a president’s legal powers. As we’ve long maintained, the U.S. program of lethal force abroad outside recognized war zones is unlawful. Now, a majority of the Supreme Court has said a president would have immunity for violating criminal laws with that power."
Liza Gotein, a senior director of the Brennan Center for Justice’s Liberty & National Security Program, while emphasizing that the scenario of a President killing a political rival might be improbable, highlights the alarming implications of the Supreme Court’s ruling: “The Court has essentially held that the President is above the law when it comes to committing a whole raft of crimes, as long as those crimes can be construed as happening while he was engaged in official [presidential] actions. I think that principle is not only misguided but dangerous, for the rule of law and for democracy.”
The ambiguity surrounding the "official" nature of presidential actions, coupled with the broader implications of the ruling, has left many legal scholars deeply concerned. While the assassination of a political rival by a President might seem like a sensationalized scenario, the Court’s decision, in the words of Gotein, "could embolden a President who has so little regard for the rule of law that the only thing that would prevent him from violating the law would be fear of personal consequences."
The legal landscape regarding presidential power has become murky and unsettling. The question isn’t just whether a President could order a killing, but whether the current ruling creates an atmosphere where such actions are perceived as more permissible. The potential for abuse of power under this new ruling remains a significant and alarming concern for the future of American democracy.
