The impact of presumptive immunity on the deterioration of democracy
Written by Madison Wood
In democratic societies, authoritarianism is often imagined as a threat confined to fragile or emerging nations, while established democracies appear insulated by strong institutions and political norms. Yet, in recent years, an unsettling pattern has emerged: elected leaders have exploited their offices to erode checks and balances, creating an unprecedented vulnerability within core democratic nations. In 2018, Robert R. Kaufman and Stephan Haggard explored parallels between the Trump presidency and the rise of elected autocracies. The professors optimistically suggested that American institutions would withstand a shift toward electoral autocracy despite alarming democratic dysfunction, political polarization, autocratic appeals, and exploitative practices by personalistic incumbents. However, through the Immunity Brief decided on July 1, 2024, Chief Justice John Roberts may have dealt a serious blow to American democracy, potentially dismantling key institutional protections against executive overreach.
Since the ratification of the Constitution, the executive branch has seen a steady expansion of power. Article II outlines the executive’s authority; by designating the president as Commander in Chief, they are able to request departmental reports, issue pardons and reprieves, make treaties with Senate approval, and appoint ambassadors, judges, and other officials. In the Federalist Papers, Alexander Hamilton further defined the executive's role in exercising their power, emphasizing the position’s need for secrecy, energy, and dispatch. Hamilton highlights the importance of keeping certain matters confidential for the betterment of national security (secrecy), acting with decisiveness, vigor, and strength when necessary (energy), and taking quick action in times of emergency or national crisis (dispatch). Although the Federalist Papers are not law, they serve as an important tool in deciphering the rules of the Consitution. Over time, the powers allotted to the executive grew through precedent, shaping the branch as a defender of public interest.
The scope of presidential authority expanded significantly through Youngstown Sheet & Tube Co. V. Sawyer (1952). During the Korean War, President Truman issued Executive Order 10340, directing the secretary of commerce to seize and operate most of the nation’s steel mills in light of a strike by the United Steelworkers of America. The court found the order to be an unconstitutional use of executive power, reinforcing the separation of branches. The decision further explained the powers of the president through a tripartite framework. The framework includes the express or implied authorization of power granted by Congress, independent powers used without congressional authority, and the “zone of twilight”. This “zone of twilight” refers to the concurrent jurisdiction between the executive and legislative branches, the distribution of which is uncertain. In recent history, a shift in ideology used this “zone of twilight” to decide the monumental case of Donald J. Trump v. The United States (2024).
The indictment alleged that, following the loss of the 2020 Presidential Election, President Donald Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certification of votes. The lower courts highlighted five primary actions to support this claim: efforts to alter electoral votes, organize fraudulent elector states, pressure the Justice Department to endorse fraudulent claims, convince the vice president to change results, and incite a riot at the Capitol to delay certification. Trump argued that these actions fell within his official duties through the tripartite framework and claimed absolute immunity from criminal prosecution for actions within the “outer perimeter” of his responsibilities.
On July 1, Chief Justice Roberts delivered a writ of certiorari, remanding the case to the lower courts for further proceedings. The 6-3 majority affirmed that while official acts enjoy absolute immunity, unofficial acts do not. But what does this mean? In the 43 pages of Roberts’s opinion, the definition of such acts remains unclear, leaving a case that could permanently alter the state of U.S. democracy muddled and unexplained. The Supreme Court classified the former president’s involvement in a conspiracy to overturn the election results as falling within the executive’s official duties to conduct investigations. With Trump’s threats to pressure the attorney general to support baseless claims, the Court ruled that this intimidation fell under the president’s authority to remove his appointed officials. In addressing Trump’s attempts to convince the vice president to alter certification results, the court seemed to ignore the gravity of such action, affording the charge a degree of presumptive immunity. The findings of the fourth count declare motive and intent irrelevant to the light of official presidential power, leaving room for the manipulation of the office in the name of democracy. The final two counts faced similar treatment, with the Court ultimately remanding the verdict to the lower court for further examination.
Based on a substantive view of the Constitution, this decision downplayed Trump’s revolutionary actions, resulting in a 6-3 ruling that prevents further prosecutions for presidential election interference. A substantive interpretation relies on what the Justices believe the authors of the Constitution could have meant when applying the document to modern society. The majority drew on Youngstown’s “zone of twilight” and Hamilton’s depiction of an energetic executive to assert that “once it is determined that the president acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.” Justice Sotomayor’s dissent warns of the danger of this precedent, arguing that it fundamentally reshapes the institution of the presidency, making a mockery of the principal foundation of the constitution and system of Government—that no man is above the law. Roberts’s conservative supermajority effectively endorsed Trump’s intimidation tactics and undemocratic actions, weakening the institutional safeguards against democratic backsliding.
The concept of “backsliding,” coined by Nancy Bermeo, refers to the process of state-led debilitation or elimination of the political institutions sustaining an existing democracy. In the post-Cold War geopolitical climate, authoritarianism emerges not through coups, but through the intramural systemic process of executive aggrandizement. Kaufman and Haggard's work illustrates how this phenomenon can even affect a country as institutionalized as the United States. They identify three interconnected factors—polarized social divisions, acquiescence to concentrated executive power, and weakened accountability to the principle of checks and balances—which they observed during the first Trump administration. The Kaufman article warned that a second Trump term could increase presidential control over other government branches and amplify his capacity to wield power against political opponents. Recent events have borne out this prediction, with the conservative Supreme Court majority supporting Trump’s unchecked discretion.
Donald Trump, now 78, campaigned under the shield of presumptive immunity from the Supreme Court while facing multiple corruption-related suits at both federal and local levels. As of Wednesday, November 6th, Trump will be the 47th president of the United States, holding a conservative triple majority in the House of Representatives, the Senate, and the Supreme Court. The gradual accumulation of executive power has a long history, but until recently, presidents have been accountable to the rule of law. The ruling in Donald Trump v. The United States, coupled with the looming reality of a second Trump administration immune to the restraints of impeachment, has sent shockwaves through the academic world, igniting fears of an irreversible collapse of American democracy.
