The Fate, to Date, of Trump v. United States
Its publicly measurable impact has been smaller than I anticipated
The Supreme Court decided Trump v. United States almost two years ago. In an article published last year, I argued that the decision would be less important for its immunity holding than for its rulings “on the President’s exclusive removal power and exclusive power over investigation and prosecution.” I claimed that while it was “hard to predict” how the Supreme Court would treat these rulings,
it is not hard to predict how the executive branch will use the Trump rulings, at least until they are later revised by courts. In litigation it will invoke them in support of broad presidential power. It will also invoke them inside the executive branch, in many contexts outside of judicial review, in deciding which executive branch actions are lawful, and in deciding, relatedly, which congressional statutes to disregard as unconstitutional.
I speculated in particular that the executive branch would rely on Trump to expand its law enforcement discretion and its authority over removal, presidential supervision, and executive privilege.
It is still early, but to date the public record shows that Trump has had less formal impact than I anticipated.
The Supreme Court
The Supreme Court has not cited Trump in the two years since it was decided—not in a merits opinion, and not in an interim order. (The decision has been cited in a concurring and a dissenting opinion.)
At one level this is unsurprising. The Court has not yet issued a merits decision on the issues that the case most obviously implicates. Trump arguably made new law on the president’s removal power, and the Court has issued a few interim orders on that issue, and a few others where it may have been relevant. But these orders have been very brief and contain little legal analysis, so the absence of Trump there may be unsurprising.
As best I can tell, with one exception no Justice has even discussed Trump at oral argument. The exception was a brief and inconclusive exchange in the oral argument in Slaughter, the removal case, between Justice Gorsuch and respondents’ counsel about Trump’s possible implications for presidential control over criminal and civil actions by agencies. (Perhaps an exchange between Justice Thomas and the Solicitor General in that argument also counts.)
The Court may well mention Trump in the Slaughter and Cook decisions, and in other merits decisions this Term concerning presidential power. Indeed, the extent of reliance on Trump in what I expect to be a government victory in Slaughter may teach us a bit about how the Justices view the case two years after deciding it. But thus far the decision has had remarkably little play in the Court’s public pronouncements.
The Solicitor General
The Court’s silence about Trump seems a little more remarkable in light of the fact that the Solicitor General frequently cites Trump in papers before the Court. I will focus primarily on Supreme Court interim order applications, where the decision has gotten the most play.
Last month Devin Dwyer of ABC News reported that “nearly a third” of the U.S. government’s interim orders interim order applications “directly cited” Trump. Dwyer stated that “Trump and his lawyers repeatedly invoke the case in an effort to get the justices to endorse expansive presidential power.”
This is true at one level but at another level skews the role that Trump has played in the applications. The government cites Trump frequently in papers that defend Trump’s expansive claims to power. But it usually cites the decision for banal background propositions and not as direct support for a novel claim of executive power.
Let’s begin with three cases that Dwyer identified.
Dwyer reported that the government in AFGE, the case about federal workforce reductions, cited Trump to argue for the “‘unrestricted’ presidential power to fire executive branch employees.” But the government did not argue there for “unrestricted” power to fire and indeed nowhere used the word “unrestricted” in its application. The Court in Trump, quoting the 1926 decision in Myers, did describe the president’s constitutional removal power as “unrestricted.” But the government did not rely on that century-old statement in its AFGE application.
The government in its AFGE application instead cited Trump for uncontroversial propositions: the president “bears responsibility for the actions of the many departments and agencies within the Executive Branch,” and the Constitution doesn’t “erect a presumption against presidential control of agency staffing, and the President does not need special permission from Congress to exercise core Article II powers.”
Dwyer also suggested that the application in Abrego Garcia,* the illegal deportation case, cites Trump in support of “unreviewable control over ‘matters related to terrorism, trade and immigration.” But the government did not argue there for unreviewable control over matters related to “terrorism, trade, and immigration” and did not cite Trump for any such proposition. It quoted the 1952 Harisiades decision to argue that immigration matters “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” It then added a “see” signal to Trump for the uncontroversial proposition that Article II entrusts the Executive with “important foreign relations responsibilities,” including “managing matters related to terrorism, trade, and immigration.”
Dwyer also stated that the government in Trump v. Illinois, the National Guard case, cited Trump to “argue for . . . absolute authority as commander-in-chief to deploy troops to aid domestic law enforcement.” The application argued that the President’s decision whether to federalize the Guard was under statutes and the Constitution an exclusive presidential prerogative. But it did not cite Trump in that part of the brief. Rather it cited Trump in the “irreparable injury” section for the banal propositions that “the President ‘must ‘take Care that the Laws be faithfully executed,’’ and that he ‘bears responsibility for the actions’ of his subordinates in the Executive Branch.’”
There are other applications where Trump is cited for small and unremarkable propositions. For example, the DVD reply cites Trump for the claim that a district judge cannot “do indirectly what he cannot do directly.” And another application offered Trump as a “cf.” citation for the factual claim that the “district court’s armchair probing into the President’s personal motivations was both factually baseless and constitutionally suspect.”
The bulk of the SG’s citations to Trump unsurprisingly came in applications in the agency removal cases—Dellinger v. Bessent, Trump v. Boyle, Trump v. Wilcox, and Trump v. Cook. Most of these citations were for unremarkable propositions. But in some applications the SG relied on Trump’s arguably novel propositions to seek to expand the president’s removal power.
For example, the Slaughter application cited Trump for the proposition that the president’s power to investigate persons “‘who violate the law’ for the purpose of determining whether to pursue enforcement action falls within ‘the special province of the Executive Branch’ and ‘implicates ‘conclusive and preclusive’ Presidential authority.’” And the SG’s reply in Boyle argued based on Trump that the Consumer Product Safety Commission’s power to “prosecute criminal cases” shows that its members must be removable since prosecutorial decisionmaking “implicates ‘conclusive and preclusive’ Presidential authority.”
These removal cases are where one would have expected the SG to invoke the novel non-immunity aspects of Trump to expand presidential power. Many of the other issues where novel aspects of Trump might be especially relevant—law enforcement discretion, the directive power, executive privilege—have not yet come squarely before the Court. Interestingly, as best I can tell, not a single counterparty response to the government’s nearly three dozen interim order applications has cited Trump (though it was discussed in Respondents’ merits brief in Slaughter, perhaps in part because of the government’s extensive reliance on Trump in its main merits brief.)
The Office of Legal Counsel
It appears that only two of the 23 published Office of Legal Counsel opinions cite Trump. In an opinion concluding that the Defense Production Act could pre-empt state law, OLC cited Trump for the throwaway proposition that the Constitution “vests the entire executive power in a single President, whose ‘duties are of ‘unrivaled gravity and breadth.’” And OLC’s opinion concluding that the Presidential Records Act is unconstitutional cited Trump for a similarly throwaway claim that the framers wanted an energetic president to ensure good government.
OLC issues more opinions than it publishes so it is quite possible that it has relied on Trump more broadly. But just looking at the published opinions, the decision has a small presence.
Behind Closed Doors
Despite the paucity of public evidence, some have claimed that Trump enabled or incentivized the administration’s very aggressive and sometimes lawbreaking actions. There is no way to know for sure, or the extent of any influence. Here are my thoughts.
Trump, to recap, had two main moving parts: Its reaffirmation and in some respects expansion of basic unitary executive principles, and its immunity holding.
The former has surely been a spur to the administration’s extravagant unitary executive claims across a number of contexts. The administration’s frequent reliance on the decisions in the interim order applications and merits briefs related to removal supports this view. But Free Enterprise Fund, Seila Law, and Collins, which pre-dated Trump, contained all of the basic principles underlying the removal and directive powers. The Court could decide Slaughter without mentioning Trump. The removal point that Trump clearly added concerned an immunity implication—that Congress was (as I interpret the case) disabled from “punishing the President for firing or threatening to fire a subordinate official in an effort to facilitate any crime.”
The other novelty in Trump related to the unitary executive concerned its linking of the Take Care Clause with the statement that the President has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” As I explained in my article and elsewhere, this and other passages go beyond prior holdings about the nature and scope of the president’s law enforcement discretion and are hard to square with decisions suggesting that that discretion has limits. Surely this aspect of Trump has encouraged the administration in its extreme assertions of discretion not to enforce the law—most notably related to the TikTok ban.
I had expected the administration to rely on Trump for a full-throated across-the-board Article II impoundment power, but thus far that has not happened.
As for the immunity elements of Trump, I remain doubtful that they have had much impact for two central reasons offered at greater length in my article.
First, the scope of the immunity conferred by the convoluted Trump opinion is very uncertain and might amount to little when tested in an actual case. (Recall that special counsel Jack Smith reindicted Trump on almost every matter after Trump.) The diminished deterrent impact of criminal law after Trump is thus often overstated, especially since many of Trump’s bad acts related to financial self-aggrandizement are private acts probably outside whatever immunity Trump confers.
Second, I doubt that Trump immunity will extend to subordinate immunity that could in turn facilitate presidential criminality. Others disagree and the administration in its suit against the D.C. Bar has suggested that it supports subordinate immunity. But in any event, subordinate immunity can be secured fully through the pardon power and a Justice Department “golden shield” immunizing opinion, both possibilities that predated Trump. To the extent so, it is hard to see what Trump adds.
As I said in my article, “I am not claiming that the immunity ruling in Trump will have zero impact on presidential branch adherence to criminal law.” The decision might well “embolden a President to commit more criminal acts than before or to push subordinates harder to do so.” But I continue to think that the actual impact is likely small in light of the other mechanisms for presidential self-protection—subordinate pardons, self-pardons, and golden shield opinions.
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Thus far, my prediction that the executive branch would aggressively use the non-immunity aspects of Trump to its advantage against the other branches has not been borne out in public legal documents. I still think Trump will have a large impact over time, especially in published OLC opinions—unless the Court in a subsequent case cuts it down.
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* Dwyer actually links in this sentence to the DVD case, not Abrego Garcia. But the quotation comes from the Abrego Garcia application, so that is the case I think he has in mind, especially since DVD does not include the quoted language.
Thanks to Ema Rose Schumer for editorial assistance