Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In Clinton v. Jones,1 the Court, in a case of first impression, held that President William Clinton did not have qualified immunity from civil suit for conduct alleged to have taken place prior to his election, and therefore denied President Clinton’s request to delay both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct—primarily so that the President could perform his duties effectively absent fear that a particular decision might lead to personal liability—did not apply when the alleged conduct at issue had occurred before his election. Moreover, the Supreme Court observed, the separation of powers doctrine did not require a stay of all private actions against the President, as the trial court had sufficient powers to accommodate the President’s schedule and his workload so as not to impede the President from performing his duties. Finally, the Court stated that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary, to protect the President.2 .

While courts may be unable to compel the President to act or prevent him from acting, his acts, when performed, are generally subject to judicial review and disallowance. Typically, the President’s subordinates, through whom he acts, may be sued pursuant to a legal fiction to enjoin committing acts that might lead to irreparable damage3 or to compel by writ of mandamus performing a duty required by law.4 Such suits are usually brought in the United States District Court for the District of Columbia.5 In common law, courts may hold a subordinate executive officer personally liable for damages that resulted from any act the officer committed that was beyond his authority,6 although he has immunity for anything, even malicious wrongdoing, that he does in performing his duties.7

Different rules prevail when a plaintiff sues an officer for wrongs based on a “constitutional tort.” 8 The Court has suggested that, in some “sensitive” areas, officers acting in the “outer perimeter” of their duties may be accorded absolute immunity from liability.9 To reach such officers for acts for which they can be held responsible, courts must use the general “federal question” jurisdictional statute.10 . On deleting the jurisdictional amount, see Pub. L. No. 94-574, 90 Stat. 2721 (1976); Pub. L. No. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a). See 28 U.S.C. § 1331.

Footnotes

1

520 U.S. 681 (1997)

2

457 U.S. at 749.

3

E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President’s order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).

4

E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).

5

This was based on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King’s Bench “over inferior jurisdictions and officers.” Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620–21 (1838). Congress has since authorized federal district courts outside the District of Columbia to entertain such suits. Act of Oct 5, 1962, Pub. L. No. 87-748, 76 Stat. 744 (codified at 28 U.S.C. § 1361).

6

E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885); Belknap v. Schild, 161 U.S. 10 (1896).

7

Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Matteo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (an action must be discretionary in nature as well as within the scope of employment, before a federal official is entitled to absolute immunity). Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time an incident occurred that led to a lawsuit; upon certification, the employee is dismissed from the action, and the United States is substituted. As a result, sometimes the action will be dismissed against the government because the government has not waived sovereign immunity under the Federal Tort Claims Act. United States v. Smith, 499 U.S. 160 (1991) (the Westfall Act bars suit against federal employee even if sovereign immunity forecloses suit against the government). Cognizant of the temptation of the government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that an Attorney General’s certification is subject to judicial review.

8

The Supreme Court recognized an implied cause of action against officers accused of constitutional violations in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), which concerned a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity Congress had previously accorded high state officials under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a case involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General’s authorization, this interpretation was not “clearly established,” and Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).

9

Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982)

10

See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see Pub. L. No. 94-574, 90 Stat. 2721 (1976); Pub. L. No. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a). See 28 U.S.C. § 1331.