New presidential immunity ruling goes against what founders intended, scholar says

Transcript

ARI SHAPIRO, HOST:

When the Supreme Court dramatically expanded presidential power yesterday, it continued a trend that's been going in one direction for a long time. Take this headline from an essay in the Wall Street Journal eight years ago - Donald Trump, quote, "will inherit an executive branch whose power has ballooned far beyond its constitutional bounds." Jeffrey Rosen wrote that piece. He is president and CEO of the National Constitution Center in Philadelphia, and he's been looking at what the latest court ruling means in the context of executive authority expanding. Jeff, welcome back to ALL THINGS CONSIDERED.

JEFFREY ROSEN: Great to be here.

SHAPIRO: Before we get to the history of presidential power expanding, would you describe yesterday's ruling as ratcheting up executive authority a few degrees or turning the dial all the way to the highest setting? Like, how dramatic a shift was this?

ROSEN: Well, Justice Ketanji Brown Jackson had called it a five-alarm fire. So for the dissenting justices, it was a dramatic, radical expansion of presidential power. They claimed that the majority invented a broad new form of presidential immunity that was not well rooted in text and history and, as a result, had dramatically expanded the power of the courts at the expense of Congress in their ability to check the president. Of course, the majority strongly disagreed and defended its decision as being well rooted in the philosophy of the founders, in particular Alexander Hamilton, and claimed that it was codifying an important protection that would prevent former presidents from being prosecuted by their successors.

SHAPIRO: So this case was focused on the ability of courts to check the president. But many years ago, during the George W. Bush administration, you and I used to do interviews about the efforts of the presidency to avoid oversight by Congress. So how do these two things relate to each other as we look at the system of checks and balances?

ROSEN: It's really true. I mean, it began in the Reagan era and has continued steadily into the post-9/11 era. The conservatives embraced a theory of the unitary executive. It's a phrase that actually came from Hamilton and his Pacificus papers that said that the president needed complete control over the executive branch, unchecked or unreviewed by Congress or the courts.

What's striking about the latest turn in this unitary executive theory is now the judges are abrogating for themselves the power to identify limits on the president and, in particular, the Supreme Court by recognizing this distinction between official and unofficial acts has invited federal courts with themselves as the final arbiters to decide when the president can be checked and when he can't. And that just puts a huge amount of authority in the hands of the Supreme Court and is consistent with the general trends of the Supreme Court in the Chevron decision involving the administrative state, which in the dissenter's view is dramatically expanding the power of judges at the expense of the other branches.

SHAPIRO: You've written that a president likes to have power no matter what party he's from. But as we see from the ideological divide in yesterday's ruling, expanding presidential power has been a conservative legal priority for a very long time. Since a president can be liberal or conservative, Democrat or Republican, why specifically has the conservative legal movement wanted to expand presidential power for so long?

ROSEN: It dates back to the progressive era, when it was a more bipartisan project. Both Theodore Roosevelt and Woodrow Wilson insisted that the president was a steward of the people and had to directly channel popular will. But it was in the '80s in particular - it was really a response to the Watergate era, when conservatives impatient at the series of checks that Congress had placed on the president after the Nixon scandals began to insist that the president had to fight back. In that sense, this really is a symmetrical culmination of the effort to fight back at the post-Watergate reforms. And by creating a new vision of presidential immunity much broader than one that even the Nixon court recognized, in the dissenters' view, they've vindicated Nixon's claim that when the president does it, it's not illegal.

SHAPIRO: How would you situate this in the long context of expanding presidential authority over many decades that you've written about and covered sort of as it has happened for some of those decades?

ROSEN: It is the culmination of a project articulated in the '80s but really stretching back far before then to the '30s. And this is the victory of unilateralism, long time in the making and now arguably transforming presidential accountability for decades to come.

SHAPIRO: The victory of unilateralism - that is a strong phrase.

ROSEN: It's not as strong as the phrases in the dissenting opinions, which really are unusual by the standards of Supreme Court opinions, with Justice Sotomayor using the phrase immune, immune, immune; Justice Jackson talking about a five-alarm fire. Chief Justice Roberts sort of bristled at this and claimed that it was alarmist and insisted that he was fighting factionalism. His big concern was that presidents would prosecute their rivals, and here he felt he was defending nonpartisan legitimacy against overheated dissents. The dissenters view things entirely differently.

SHAPIRO: Interesting that for people who might look at these headlines and say, an ideological divide on the Supreme Court sounds like another Monday, you're saying, no, this isn't what we see all the time. This is different.

ROSEN: This is different. It's the contours of the presidency. It's the question of accountability. It's the central question of the founding, which is the accountability of all branches and the sovereignty of we the people rather than their representatives. Of course, this is a good-faith disagreement, and six justices strongly recognize this form of immunity. So people of different perspectives can reasonably disagree. But in the view of the dissenters, this really will immunize the president from accountability in ways that the founders did not intend.

SHAPIRO: Jeff Rosen is president and CEO of the National Constitution Center. His latest book is "The Pursuit Of Happiness: How Classical Writers On Virtue Inspired The Lives Of The Founders And Defined America." Thank you so much.

ROSEN: Thank you, Ari. Thank you so much. Transcript provided by NPR, Copyright NPR.