Trump is pushing a theory of the presidency at odds with mainstream conservatism, but the Supreme Court won’t have it—at least at its own expense.
President Trump is no stranger to making bold, unfounded claims. In April, he asserted that “[w]hen somebody’s the president of the United States, the authority is total.” A few days later, he claimed he has the authority to force Congress to adjourn. In May, he threatened to “override” governors if they didn’t deem houses of worship to be “essential,” which would allow them to reopen during the pandemic. More recently, Trump on Twitter threatened to withhold funding to Michigan if it continued acting to implement vote-by-mail programs. As a legal matter, each is incorrect.
However, the merits of Trump’s claims to legal authority are only part of the picture. The statements demonstrate that Trump is pushing the idea of a presidency unfamiliar to the Constitution and to most conservatives. However, though the Supreme Court recently rejected the core of Trump’s theory in Trump v. Vance and Trump v. Mazars USA, it subtly endorsed an idea of presidential power not clearly grounded in the Constitution. In doing so, the Court empowered itself. There is no constitutional reason for courts to be the final arbiters of separation-of-powers disputes, but the Supreme Court has decided the judiciary should have this role.
The idea of the presidency that Trump espouses is not a clean restatement of the dominant theory of the presidency endorsed by contemporary conservatives. That theory, unitary executive theory, first gained traction in the 1970s and has found support within the conservative legal movement. At its core, unitary executive theory holds that the Executive Branch is unified and hierarchical, so the president holds complete control over the entire executive apparatus and, as a result, wields significantly more authority over lawmaking than many of its critics believe. Unitary executive theorists typically attempt to ground the theory in formalistic readings of constitutional text. Proponents frequently point to the Vesting Clause of Article II, the Commander in Chief Clause, and the Take Care Clause. However, many critics and historians have pointed out that it’s not clear the theory finds support in constitutional text, history, or theory.
Whatever the merits of the theory, what Trump and some of his allies are articulating is quite different—or, at the very least, is a more extreme version. Trump’s assertions of broad presidential power go far beyond just control over the Executive Branch to extend to every facet of American governance. Insofar as room is left for either federalism or horizontal separation of powers, they merely serve to fill up the details, or to make policy in areas the president is not then concerned with. Like unitary executive theory, however, Trump’s articulation of this theory of the presidency (and his lawyers’ invocation of it to the Supreme Court) must be understood as an attempt to embed a new idea into the institution of the presidency. This is not a legal point, but a developmental one.
But last week, the Supreme Court rejected the core of Trump’s theory in Vance and Mazars. In Vance, the Court decided the president is not entitled to either absolute immunity or a heightened standard of review for a state criminal subpoena. The subpoenas the New York County District Attorney’s office had served to Trump’s accounting firms therefore can go forward. Mazars presented a similar question. There, the Court was asked to decide whether subpoenas issued by committees of the House of Representatives to Trump’s banks and accounting firms were barred. The Court held they were not.
Many see these cases as unequivocal losses for Trump. The upshot of Vance is that the President will likely have to make his tax returns public at some point. Mazars similarly suggests the House subpoenas are not quashed, at least for now. Both investigations can continue. But as others have pointed out, this is not a correct reading of these cases. It is unlikely any of the information sought by either the Manhattan DA or the House will be publicly available before the election this November—a clear victory for Trump.
Beneath the discussion of Trump’s financial records and subpoena power is an important debate over constitutional development. It is remarkable these cases were even before the Court at all. As Chief Justice John Roberts pointed out in Mazars, “[h]istorically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive.’” And yet, here the Court is inserting itself, and declaring itself to be the separation-of-powers police—something the Constitution neither requires nor contemplates.
In both cases, the President sued in his personal capacity to enjoin enforcement of the subpoenas. The Constitution, as Publius explains in Federalist 51, designed the presidency so that the “interest of the man [is] connected with the constitutional rights of the place.” Rather than heeding his constitutional duties and resorting to traditional interbranch contestation, Trump rejected the alignment of personal and presidential and resorted to legal action with hope the courts would endorse his theory of the presidency.
This is the crux of the battle over presidential power. In Vance, the President argued Article II and the Supremacy Clause gave him absolute immunity from state criminal proceedings. In Mazars, the President claimed the House subpoenas lacked a legitimate legislative purpose and violated the separation of powers. Both arguments were wholly novel approaches to presidential power and not grounded in any existing law, as the Court noted. At first glance, it appears the Court rejected both.
But it’s not quite so simple. Chief Justice Roberts was careful to leave some room for Trump’s theory, but only when the courts say so. The primary issue Roberts pointed to in Mazars was the lower courts’ failure to give the President special treatment: “[l]argely following the House’s lead, the courts below treated these cases much like any other, applying precedents that do not involve the President’s papers.” Congressional subpoenas “unavoidably pit the political branches against one another.” Roberts said correctly that the nature of these interbranch disputes “would be transformed by judicial enforcement of either of the approaches suggested by the parties,” but then picked a third approach to judicial enforcement. Roberts posited a special four-factor “balanced approach” that courts can use to assess the validity of congressional subpoenas to the President. Congressional subpoenas to anyone else do not get this special test. The least-intrusive choice would have been for the Court to let the House subpoenas go forward and let the political process sort it out. But no, Roberts found a role for the Court to police interbranch disputes, leaving room for a court to find Congress exceeded its role when asking for information from the president. This is a narrow victory for the presidency but a major victory for the power of the Court.
Vance adopted a similar framework. The Court decided the Executive is not entitled to either absolute immunity or a heightened standard of review for state subpoenas. Though the Court seemed to suggest the president gets no special treatment with respect to grand-jury subpoenas, it left open the possibility that burdens unique to the presidency might make a difference. Careful to distinguish his opinion from Justice Alito’s dissent, Roberts wrote the president is “not ‘relegate[d]’ only to the challenges available to private citizens.” The objections Trump had to these subpoenas did not entitle him to absolute immunity, but could be raised on a case-by-case basis: a president can “raise subpoena-specific constitutional challenges, in either a state or federal forum” or could argue that “compliance with a particular subpoena would impede his constitutional duties.” Balancing the unique presidential burdens against the public’s interest in seeing evidence is apparently a job for a court.
These decisions make clear that in future scenarios—a congressional or state subpoena to a sitting president—the courts are the ones to decide. Roberts and the other Justices have created a new role for the courts: the final arbiter of separation-of-powers disputes. The Court fails to understand that the separation of powers is not a rule for the courts to enforce, but a system of government. The separation of powers was designed so that ambition could counteract ambition. Trump’s decision to ask the Court to endorse his enormous theory of presidential power gave it a unique opportunity to increase its own power by adopting part of Trump’s theory. While the Court and the presidency—in that order—are the clear winners, there are two losers: Congress and the Constitution.
Allen Sumrall is a fifth-year combined JD/PhD student in the School of Law and Department of Government at the University of Texas at Austin. His research focuses on American political and constitutional development.