“If Congress passes a law that says a president isn’t immune from criminal acts committed in office, could the Supreme Court decide the law is unconstitutional even though there’s nothing in the Constitution about it? Could it stand (assuming this partisan Court followed the law for a change)? Or does this horrible immunity decision make that impossible?”
— Lisa Ruml, Dover, New Jersey
Hi Lisa,
Yes, the current Supreme Court could (and likely would) say that such a law is unconstitutional. While I agree with you that the immunity ruling in Trump v. United States was unfounded, the Supreme Court is nonetheless seen as the decider of constitutional meaning. With that in mind, the ruling takes issue with your premise that there’s nothing in the Constitution about immunity, because the court framed its decision against the backdrop of “our constitutional structure of separated powers.”
To be sure, there are situations where Congress can override a Supreme Court ruling by passing a law. If there’s a decision about what a law means (as opposed to what the Constitution means), Congress can pass a new law addressing that ruling. For example, then-President Barack Obama signed into law the 2009 Lilly Ledbetter Fair Pay Act, which overrode a 2007 case that was decided on statutory (not constitutional) grounds. The late Justice Ruth Bader Ginsburg had noted in her 2007 dissent that “the ball is in Congress’ court” — and Congress acted.
The political response to the immunity ruling highlights this reality. The background I laid out above is probably the reason that President Joe Biden’s court reform support includes a constitutional amendment saying former presidents aren’t immune from prosecution, as opposed to a regular law saying so. An amendment is of course more difficult to accomplish, though it has happened 27 times before — with agreement of two-thirds of the House and Senate, plus three-quarters of the states. More from ‘Ask Jordan’: What happens in Trump’s cases if he loses the election? Does the public have a right to speedy trials against Trump? Is Trump really above the law? Another long-shot way to overturn the immunity ruling is for the court to do so directly. Absent an unlikely change of heart by the current justices, that would hinge on a new court composition, which could take years to happen, if it ever does. The 2022 Dobbs ruling overturning 1973’s Roe v. Wade was the product of a decades-long conservative legal movement push to remake the courts. Dobbs has likewise sparked a backlash, but whether it prompts a movement that remakes the Supreme Court remains to be seen. Without a similar movement in response to this era’s rulings, we may be stuck with them. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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