//  3/26/18  //  In-Depth Analysis

Cross-posted from Dorf on Law

In a post on Thursday of last week, I noted a friendly disagreement with Prof. Josh Blackman over a question that is, at this point, entirely theoretical. The two of us, along with Prof. Ben Zipursky, were guests on a KPCC radio show to discuss Zervos v. Trump. We all agreed that the NYS trial court judge correctly ruled that the president lacks temporary immunity from suit in state court, an issue that had been left open by the Supreme Court in Clinton v. Jones. Josh and I agreed that Congress could provide the immunity the president sought by statute, but he thinks such immunity could only apply in federal court, not state court, because Congress controls the jurisdiction of the federal courts but has substantially less control over what happens in state court. In response, I wrote:

I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of federal law that grants service members relief from civil litigation during their service. That law applies in state court and so would a law protecting the president. If Congress has the power to enact such a substantive rule -- as the Court correctly assumed in Jones -- then it could be made to apply in state as well as federal court.

On Friday of last week, Josh published a thoughtful reply in which he raised some objections. Although I fear that he and I may be the only two people in the world who care about this very-likely-to-remain-hypothetical question, here I'll respond in turn. My bottom line is that I think some of the hypothetical cases he raises are indeed problematic, but not in the same way that he thinks.

Before coming to Josh's examples, let me first make my affirmative case a bit more forcefully. We can begin by asking what power Congress exercises when it confers federal immunity -- whether temporary or permanent -- to state law causes of action. Consider the Soldiers' and Sailors' Civil Relief Act of 1940, which was cited by the SCOTUS in Jones in support of the proposition that Congress, by providing temporary immunity for service members but not for the Commander in Chief, had made a judgment to deny the president such immunity. As I noted last week, the immunity granted by that Act as amended protects against civil suits under state or federal law in state or federal court.

What affirmative power was Congress exercising when it passed and amended the Soldiers' and Sailors' Relief Act? Article I, Section 8 of the Constitution empowers Congress "To raise and support Armies" and "To provide and maintain a Navy." To support and maintain the army and navy (as well as the Air Force, Marines, and Coast Guard), Congress can enact legislation removing obstacles to effective service. Private lawsuits against active duty service members may interfere with their service, and the statute provides that, if so, the service members are entitled to temporary immunity. The Act is thus necessary and proper to carrying out Congress's enumerated powers for the national defense.

What about a hypothetical law giving the president a similar temporary immunity? The president has the constitutional duty to "take Care that the Laws be faithfully executed." Congress could determine that the distraction of private lawsuits would interfere with the president's ability to do so. That, in turn, would undermine the enforcement of the laws that Congress has enacted pursuant to its various enumerated powers. Accordingly, a law granting temporary immunity to the president would be necessary and proper to carrying out the congressional powers that underwrite the various laws Congress has enacted and given over to executive enforcement.

Crucially, nothing in the foregoing argument turns on where the president (or a service member in the case of the actual law already on the books) happens to be sued or on what the source of the cause of action is. The distraction of litigation--wherever it occurs and based on whatever source of law--is the evil to be addressed by temporary immunity. Thus, in my view, there is clear affirmative power in Congress to provide the president with temporary immunity to civil litigation. Although Josh invokes ostensible limits on congressional power with respect to state court jurisdiction, nothing in the argument I've just described has anything to do with Congress's power to set jurisdictional rules, because the temporary immunity of service members and the temporary immunity of the president (if Congress were to confer it) are substantive rules of law, not limits on jurisdiction.

Against all of this, Josh indicates four sorts of limits. I'll agree in part with two of them and disagree with the other two

(1) Substantive due process. Under Boddie v. Connecticut and related cases, there is a constitutional right to a divorce. Josh asks whether it would be constitutional for Congress to enact a law that had the effect of disabling the spouse of the president from obtaining a divorce for up to eight years. He implies that such a law would violate the spouse's right to a divorce. I agree. (I set to one side the question whether the immunity granted by our hypothetical statute would actually apply if a no-fault divorce were sought by the non-president spouse.)

(2) Procedural due process. More broadly, there may be circumstances in which justice delayed is justice denied. For certain kinds of injunctive relief -- an action to abate a nuisance brought by the owner of property adjacent to property owned by the president, say, -- a too-long delay could amount to a denial of procedural due process.

To be sure, the issue is complicated by the fact that Congress might be able to give a president permanent immunity against some private lawsuits. Despite the maxim for every right a remedy, the law sometimes immunizes all the potential defendants to lawsuits seeking to vindicate legal rights. That, in itself, is permissible. And one might think that if Congress can grant permanent immunity, surely it can take the lesser step of granting temporary immunity. That's probably right, although the greater power does not always include the lesser power.

In any event, however one resolves these issues, the key point with respect to both cases (1) and (2) is that they have nothing to do with limits on the affirmative power of Congress or jurisdiction. We can see that by imagining that state law gave a defendant to a divorce action or other action for injunctive relief a right to delay for four or eight years. The problem then would be a violation of due process under the Fourteenth Amendment, directly applicable to the state. In other words, the exact same objection would obtain to the exact same degree, without any action at all by Congress. Thus, the problem in these hypothetical cases has nothing to do with any limits on the power of Congress to limit the jurisdiction of state courts.

(Josh may not disagree. He discusses the due process issue as an "additional problem," so I suspect he thinks this point is not about jurisdiction. But he weaves it into his discussion of jurisdiction, so I'm not sure whether he thinks the due process argument advances his broader view about limits on congressional power regarding state court jurisdiction.)

(3) Tenth Amendment. Josh writes: "Congress . . . lacks the power to divest the state courts of jurisdiction or authority over matters that are not delegated to Congress, but are reserved to the states, and the people." That's right as far as it goes, but it doesn't go very far.

Domestic relations fall within the reserved powers of the states for the most part. That means that Congress could not prescribe a comprehensive national marriage code or child custody law. However, Congress can use the powers it does have to regulate in ways that have an impact on domestic relations or other matters that are otherwise within states' regulatory authority.

For example, federal tax law, ERISA, and numerous other federal statutes create financial incentives and disincentives for marriage, which in turn affect whether people take advantage of state law creating the marriage relationship. More broadly, areas that are reserved to state regulation because Congress lacks general lawmaking authority in such areas can be affected by federal legislation where Congress exercises some enumerated power that intersects the otherwise state-reserved area. And that's exactly what happens with the Soldiers' and Sailors' Relief Act as well as the hypothetical law granting a president temporary immunity from civil lawsuits.

(4) Necessary & Proper. In NFIB v. Sebelius, Chief Justice Roberts invoked a category identified by John Marshall in McCulloch v. Maryland: "great substantive and independent power[s]" that cannot be inferred via the Necessary & Proper Clause but can only be granted in terms. Roberts thought that issuing purchase mandates was such a power. Josh cites a recent article he wrote in which he contends that stripping state courts of jurisdiction over cases that otherwise fall within their jurisdiction is likewise a great substantive and independent power that Congress lacks. I'm not persuaded, but even supposing Josh is right about this point in general, his argument does not apply here, because, to repeat, in conferring temporary immunity on the president, Congress would not be regulating jurisdiction at all.

We can see the point most clearly by imagining a federal statutory defense to a state law cause of action. Suppose plaintiff, a cigarette smoker who develops lung cancer, sues defendant, a tobacco company, in state court for the state law tort of failure to warn. The tobacco company would successfully bring a motion to dismiss on the ground that its cigarettes were labeled in conformity with the federal Cigarette Labeling and Advertising Act. The federal Act is not an exercise of any purported federal power to control the jurisdiction of the state courts. It's a regulation of interstate commerce, and it pre-empts state efforts via tort law to impose a requirement of additional warnings beyond those required by federal law (as the SCOTUS held in the Cipolone case).

Perhaps a more charitable way of saying the foregoing is that in the very language Josh quotes from his own law review article, he supposes that federal law does not pre-empt state law, so that Congress really is attempting to exercise a power to strip state courts of jurisdiction without supplying any substantive federal law that displaces state law. But that's not true with respect to the Soldiers' and Sailors' Relief Act or our hypothetical federal law granting the president temporary immunity. Those laws pre-empt state law to the extent that state law permits the cases to go forward immediately.

Accordingly, although I think it would be a bad idea and that it won't happen, Congress could, if it so chose, grant the president temporary immunity from civil actions in state as well as federal court during his or her presidency, subject to an as-applied challenge where--as in the divorce and nuisance examples--the denial to plaintiffs of quicker court access would violate substantive or procedural due process.


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