From the Legal Information Institute and Project Hermes


No. 95-1853


on writ of certiorari to the united states court of appeals for the eighth circuit

[May 27, 1997]

Justice Breyer , concurring in the judgment.

I agree with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct. Nor does the "doctrine of separation of powers . . . require federal courts to stay" virtually "all private actions against the President until he leaves office." Ante, at 24. Rather, as the Court of Appeals stated, the President cannot simply rest upon the claim that a private civil lawsuit for damages will "interfere with the constitutionally assigned duties of the Executive Branch . . . without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit." 72 F. 3d 1354, 1361 (CA8 1996). To obtain a postponement the President must "bea[r] the burden of establishing its need." Ante, at 26.

In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle--a principle that forbids a federal judge in such a case to interfere with the President's dischargeof his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon Article II's vesting of the entire "executive Power" in a single individual, implemented through the Constitution's structural separation of powers, and revealed both by history and case precedent.

I recognize that this case does not require us now to apply the principle specifically, thereby delineating its contours; nor need we now decide whether lower courts are to apply it directly or categorically through the use of presumptions or rules of administration. Yet I fear that to disregard it now may appear to deny it. I also fear that the majority's description of the relevant precedents de emphasizes the extent to which they support a principle of the President's independent authority to control his own time and energy, see, e.g., ante, at 11 (describing the "central concern" of Nixon v. Fitzgerald, 457 U.S. 731 (1982), as "to avoid rendering the President `unduly cautious' "); ante, at 13, and n. 23 (describing statements by Story, Jefferson, Adams, and Ellsworth as providing "little" or "no substantial support" for the President's position). Further, if the majority is wrong in predicting the future infrequency of private civil litigation against sitting Presidents, ante, at 20, acknowledgement and future delineation of the constitutional principle will prove a practically necessary institutional safeguard. For these reasons, I think it important to explain how the Constitution's text, history, and precedent support this principle of judicial noninterference with Presidential functions in ordinary civil damages actions.

The Constitution states that the "executive Power shall be vested in a President." U. S. Const., Art. II, §1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. He (along with his constitutionally subordinate Vice President) is the only official for whom the entire Nation votes, and is the only elected officer to represent the entire Nation both domestically and abroad.

This constitutional delegation means still more. Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch. It thereby creates a constitutional equivalence between a single President, on the one hand, and many legislators, or judges, on the other.

The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. They also sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. Compare U. S. Const., Art. II, §1 (vesting power in "a President") with U. S. Const., Art. I, §1 (vesting power in "a Congress" that "consist[s] of a Senate and House of Representatives") and U. S. Const., Art. III, §1 (vesting power in a "supreme Court" and "inferior Courts").

The authority explaining the nature and importance of this decision is legion. See, e.g., J. Locke, Second Treatise of Civil Government §144 (J. Gough ed. 1947) (desirability of a perpetual Executive); W. Blackstone, Commentaries *242-243 (need for single Executive); The Federalist No. 70, p. 423 C. Rossiter ed. 1961) (A. Hamilton) (Executive "[e]nergy" needed for security,%steady administration of the laws," "protection of property," "justice," and protection of "liberty"); Oliver Ellworth, The Landholder, VI, in Essays on the Constitution 163 (P. Ford ed. 1892) ("supreme executive should be one person, and unfettered otherwise than by the laws he is to execute"); Morrison v. Olson, 487 U.S. 654, 698-699 (1988) (Scalia, J., dissenting) (describing history); id., at 705 (describing textual basis); id., at 729 (describing policy arguments). See also The Federalist No. 71, at 431 (A. Hamilton); P. Kurland, Watergate and the Constitution 135 (1978) (President is "sole indispensable man in government" and "should not be called" from his duties "at the instance of any other . . . branch of government"); Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 37-47 (1995). Cf. T. Roosevelt, An Autobiography 372 (1913).

For present purposes, this constitutional structure means that the President is not like Congress, for Congress can function as if it were whole, even when up to half of its members are absent, see U. S. Const., Art. I, §5, cl. 1. It means that the President is not like the Judiciary, for judges often can designate other judges, e.g., from other judicial circuits, to sit even should an entire court be detained by personal litigation. It means that, unlike Congress, which is regularly out of session, U. S. Const., Art. I, §§4, 5, 7, the President never adjourns.

More importantly, these constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it. And the related constitutional equivalence between President, Congress, and the Judiciary, means that judicial scheduling orders in a private civil case must not only take reasonable account of, say, a particularly busy schedule, or a job on which others critically depend, or an underlying electoral mandate. They must also reflect the factthat interference with a President's ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out their public obligations.

The leading case regarding Presidential immunity from suit is Nixon v. Fitzgerald. Before discussing Fitzgerald, it is helpful to understand the historical precedent on which it relies. While later events have called into question some of the more extreme views on Presidential immunity, the essence of the Constitutional principle remains true today. The historical sources, while not in themselves fully determinative, in conjunction with this Court's precedent inform my judgment that the Constitution protects the President from judicial orders in private civil cases to the extent that those orders could significantly interfere with his efforts to carry out his ongoing public responsibilities.

Three of the historical sources this Court cited in Fitzgerald, 457 U. S., at 749, 750-752, n. 31--a commentary by Joseph Story, an argument attributed to John Adams and Oliver Ellsworth, and a letter written by Thomas Jefferson--each make clear that this is so.

First, Joseph Story wrote in his Commentaries:

" There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among those, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must bedeemed, in civil cases at least, to possess an official inviolability ." 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1833) (emphasis added), quoted in Fitzgerald, supra, at 749.

As interpreted by this Court in Nixon v. Fitzgerald, the words "for this purpose" would seem to refer to the President's need for "official inviolability" in order to "perform" the duties of his office without "obstruction or impediment." As so read, Story's commentary does not explicitly define the contours of "official inviolability." But it does suggest that the "inviolability" is timebound ("while . . . in the discharge of the duties of his office"); that it applies in private lawsuits (for it attaches to the President's "person" in "civil cases"); and that it is functional ("necessarily implied from the nature of the [President's] functions").

Since Nixon did not involve a physical constraint, the Court's reliance upon Justice Story's commentary makes clear, in the Court's view, that the commentary does not limit the scope of "inviolability" to an immunity from a physical imprisonment, physical detention, or physical "arrest"--a now abandoned procedure that permitted the arrest of certain civil case defendants (e.g., those threatened by bankruptcy) during a civil proceeding.

I would therefore read Story's commentary to mean what it says, namely that Article II implicitly grants an "official inviolability" to the President "while he is in the discharge of the duties of his office," and that this inviolability must be broad enough to permit him "to perform" his official duties without "obstruction or impediment." As this Court has previously held, the Constitution may grant this kind of protection implicitly; it need not do so explicitly. See Fitzgerald, supra, at 750, n. 31; United States v. Nixon, 418 U.S. 683, 705-706, n. 16 (1974); cf. McCulloch v. Maryland, 4 Wheat. 316, 406 (1819).

Second, during the first Congress, then Vice President John Adams and then Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said that the " `President, personally, was not the subject to any process whatever . . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government. '" 457 U. S., at 751, n. 31 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Senator Maclay, Adams, and Ellsworth)). They included in their claim a kind of immunity from criminal, as well as civil, process. They responded to a counterargument--that the President "was not above the laws," and would have to be arrested if guilty of crimes--by stating that the President would first have to be impeached , and could then be prosecuted. 9 Documentary History of First Federal Congress of United States 168 (K. Bowling & H. Veit eds. 1988) (Diary of William Maclay). This court's rejection of Adams' and Ellsworth's views in the context of criminal proceedings, see ante, at 23, does not deprive those views of authority here. See Fitzgerald, supra, at 751-752, n. 31. Nor does the fact that Senator William Maclay, who reported the views of Adams and Ellsworth, "went on to point out in his diary that he virulently disagreed with them." Ante, at 13, n. 23. Maclay, unlike Adams and Ellsworth, was not an important political figure at the time of the constitutional debates. See Diary of William Maclay xi-xiii.

Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether the federal courts could subpoena his presence in a criminal case, wrote the following to United States Attorney George Hay:

"The leading principle of our Constitution is the independence of the Legislature, executive andjudiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?" 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of June 20, 1807, from President Thomas Jefferson to United States Attorney George Hay), quoted in Fitzgerald, 457 U. S., at 751, n. 31.

Three days earlier Jefferson had written to the same correspondent:

"To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from its station by any co ordinate authority." 10 Works of Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George Hay).

Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal and civil judicial process--an immunity greater in scope than any immunity, or any special scheduling factor, now at issue in the civil case before us. The significance of his views for present purposes lies in his conviction that the Constitution protected a sitting President from litigation that would "withdraw" a President from his current "constitutional duties." That concern may not have applied to Mr. Fitzgerald's 1982 case against a former President, but it is at issue in the current litigation.

Precedent that suggests to the contrary--that theConstitution does not offer a sitting President significant protections from potentially distracting civil litigation--consists of the following: (1) In several instances sitting Presidents have given depositions or testified at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas seeking documents from a sitting President for use in a criminal case.

I agree with the majority that these precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story's basic conclusion that "in civil cases," a sitting President "possess[es] an official inviolability" as necessary to permit him to "perform" the duties of his office without "obstruction or impediment."

The first set of precedents tells us little about what the Constitution commands, for they amount to voluntary actions on the part of a sitting President. The second set of precedents amounts to a search for documents, rather than a direct call upon Presidential time. More important, both sets of precedents involve criminal proceedings in which the President participated as a witness. Criminal proceedings, unlike private civil proceedings, are public acts initiated and controlled by the Executive Branch; see United States v. Nixon, 418 U. S., at 693-696; they are not normally subject to postponement, see U. S. Const., Amdt. 6; and ordinarily they put at risk, not a private citizen's hope for monetary compensation, but a private citizen's freedom from enforced confinement, 418 U. S., at 711-712, and n. 19; Fitzgerald, supra, at 754, n. 37. See also id ., at 758, n. 41. Nor is it normally possible in a criminal case, unlike many civil cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e.g., Winter v. Cerro Gordo County Conservation Bd., 925 F. 2d 1069, 1073 (CA8 1991); Foley v. Lowell, 948 F. 2d 10, 17-18 (CA1 1991); Wooten v. McClendon, 272 Ark. 61, 62-63, 612 S.W. 2d 105, 106 (1981).

The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952), concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President's official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies, the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with, the President's basic task--the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly to carry out his official duties, see Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J., concurring in part and concurring in judgment) (describing the "apparently unbroken historical tradition . . . implicit in the separation of powers" that a President may not be ordered by the Judiciary to perform particular Executive acts); id., at 802-803 (plurality opinion of O'Connor, J.), so much the more must those principles counsel caution when such an order threatens to interfere with the President's properly carrying out those duties.

Case law, particularly, Nixon v. Fitzgerald, strongly supports the principle that judges hearing a private civil damages action against a sitting President may not issue orders that could significantly distract a President from his official duties. In Fitzgerald, the Court held that former President Nixon was absolutely immune from civil damage lawsuits based upon any conduct within the "outer perimeter" of his official responsibilities. 457U. S., at 756. The holding rested upon six determinations that are relevant here.

First, the Court found that the Constitution assigns the President singularly important duties (thus warranting an "absolute," rather than a "qualified," immunity). Id., at 750-751. Second, the Court held that "recognition of immunity" does not require a "specific textual basis" in the Constitution. Id., at 750, n. 31. Third, although physical constraint of the President was not at issue, the Court nevertheless considered Justice Story's constitutional analysis, discussed supra, at , "persuasive." 457 U. S., at 749. Fourth, the Court distinguished contrary precedent on the ground that it involved criminal, not civil, proceedings. Id., at 754, and n. 37. Fifth, the Court's concerns encompassed the fact that "the sheer prominence of the President's office" could make him "an easily identifiable target for suits for civil damages." Id., at 752-753. Sixth, and most important, the Court rested its conclusion in important part upon the fact that civil lawsuits "could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve." Id., at 753.

The majority argues that this critical, last mentioned, feature of the case is dicta. Ante, at 11, n. 19. In the majority's view, since the defendant was a former President, the lawsuit could not have distracted him from his official duties; hence the case must rest entirely upon an alternative concern, namely that a President's fear of civil lawsuits based upon his official duties could distort his official decisionmaking. The majority, however, overlooks the fact that Fitzgerald set forth a single immunity (an absolute immunity) applicable both to sitting and former Presidents. Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys an absolute immunity rather than a qualified immunity, contains seven sentences, four ofwhich focus primarily upon time and energy distraction and three of which focus primarily upon official decision distortion. Indeed, that key paragraph begins by stating:

"Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government." 457 U. S., at 751.

Moreover, the Court, in numerous other cases, has found the problem of time and energy distraction a critically important consideration militating in favor of a grant of immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982) (qualified immunity for Presidential assistants based in part on "costs of trial" and "burdens of broad reaching discovery" that are "peculiarly disruptive of effective government"); Imbler v. Pachtman, 424 U.S. 409, 423 (1976) (absolute immunity of prosecutors based in part upon concern about "deflection of the prosecutor's energies from his public duties"); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (absolute immunity for legislators avoids danger they will "be subjected to the cost and inconvenience and distractions of a trial"). Indeed, cases that provide public officials, not with immunity, but with special protective procedures such as interlocutory appeals, rest entirely upon a "time and energy distraction" rationale. See Behrens v. Pelletier, 516 U. S. ___, (1996) (slip op., at 8-11) ("[G]overnment official['s] right . . . to avoid standing trial [and] to avoid the burdens of such pretrial matters as discovery" are sufficient to support an immediate appeal from "denial of a claim of qualified immunity") (citations and internal quotation marks omitted); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("[E]ntitlement not to stand trial or face the other burdens of litigation . . . is effectively lost if a case iserroneously permitted to go to trial") (citing Harlow, supra, at 818).

It is not surprising that the Court's immunity related case law should rely on both distraction and distortion, for the ultimate rationale underlying those cases embodies both concerns. See Pierson v. Ray, 386 U.S. 547, 554 (1967) (absolute judicial immunity is needed because of "burden" of litigation, which leads to "intim idation"); Bradley v. Fisher, 13 Wall. 335, 349 (1872) (without absolute immunity a judge's "office [would] be degraded and his usefulness destroyed" and he would be forced to shoulder "burden" of keeping full records for use in defending against suits). The cases ultimately turn on an assessment that the threat that a civil damage lawsuit poses to a public official's ability to perform his job properly. And, whether they provide an absolute immunity, a qualified immunity, or merely a special procedure, they ultimately balance consequent potential public harm against private need. Distraction and distortion are equally important ingredients of that potential public harm. Indeed, a lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability. If the latter concern can justify an "absolute" immunity in the case of a President no longer in office, where distraction is no longer a consideration, so can the former justify, not immunity, but a postponement, in the case of a sitting President.

The majority points to the fact that private plaintiffs have brought civil damage lawsuits against a sitting President only three times in our Nation's history; and it relies upon the threat of sanctions to discourage, and "the court's discretion" to manage, such actions so that "interference with the President's duties would notoccur." Ante, at 27. I am less sanguine. Since 1960, when the last such suit was filed, the number of civil lawsuits filed annually in Federal District Courts has increased from under 60,000 to about 240,000, see Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary 27 (1995); Annual Report of the Director of the Administrative Office of the United States Courts--1960, at p. 224 (1961); the number of federal district judges has increased from 233 to about 650, see Administrative Office of United States Courts, Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the Administrative Office of the United States Courts--1960, supra, at p. 205; the time and expense associated with both discovery and trial have increased, see, e.g., Bell, Varner & Gottschalk, Automatic Disclosure in Discovery--The Rush To Reform, 27 Ga. L. Rev. 1, 9-11 (1992); see also S. Rep. No. 101-416, p. 1 (1990); Judicial Improvements Act of 1990, Pub. L. 101-650, 104 Stat. 5089; an increasingly complex economy has led to increasingly complex sets of statutes, rules and regulations, that often create potential liability, with or without fault. And this Court has now made clear that such lawsuits may proceed against a sitting President. The consequence, as the Court warned in Fitzgerald, is that a sitting President, given "the visibility of his office," could well become "an easily identifiable target for suits for civil damages," 457 U. S., at 753. The threat of sanctions could well discourage much unneeded litigation, ante, at 27, but some lawsuits (including highly intricate and complicated ones) could resist ready evaluation and disposition; and individual district court procedural rulings could pose a significant threat to the President's official functions.

I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damage actions against sitting Presidents without significantly interfering with the discharge of Presidential duties--at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority's optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive. A Constitution that separates powers in order to prevent one branch of Government from significantly threatening the workings of another could not grant a single judge more than a very limited power to second guess a President's reasonable determination (announced in open court) of his scheduling needs, nor could it permit the issuance of a trial scheduling order that would significantly interfere with the President's discharge of his duties--in a private civil damage action the trial of which might be postponed without the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." And I believe that ordinary case management principles are unlikely to prove sufficient to deal with private civil lawsuits for damages unless supplemented with a constitutionally based requirement that district courts schedule proceedings so as to avoid significant interference with the President's ongoing discharge of his official responsibilities.

This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President's term. It may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court's postponement of the trial date was premature. For those reasons, I concur in the result.

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