On July 1, 2024, the United States Supreme Court issued its opinion in Trump v. United States holding that a former president is immune from prosecution crimes committed while in office if those crimes were committed as "official acts" as president. The Court did not explain how any "official act" by a president could ever be a crime or how a the commission of a crime could ever be an "official act" by a president. Not surprisingly, the majority opinion has been widely criticized as undermining the most fundamental rule of law that no person is above the law and the law applies equally to all.
There is perhaps an even more fundamental problem with the Trump v. United States, namely that the Court ruled on the merits of Trump's immunity claim without first determining that it had jurisdiction under Article III of the Constitution to hear and decide the matter. All nine justices apparently assumed without question that the Court had jurisdiction, since not a single justice raised the issue. Nevertheless, a close analysis of the powers granted under Article III and the posture of the case as presented to the Supreme Court demonstrates that assumption was wrong.
Article III sets forth the power of the federal courts to hear and decide cases. Sec. 2, Article III, states:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State, —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
By its plain language, the judicial power of the United States extends only to deciding certain types of cases and controversies, including cases "arising under" federal law as found in the Constitution itself, the laws of the United States, or treaties made by the United States. Jurisdiction based on Sec. 2 also limits the original jurisdiction of the Supreme Court to certain types of cases and specifies that the Court otherwise has only appellate jurisdiction:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The distinction between original and appellate jurisdiction is a critical one. It cannot, or at least should not, be assumed that in each instance in which a federal district court has original jurisdiction of a case under Article III, the Supreme Court necessarily has appellate jurisdiction anytime a litigant seeks review of a ruling made in the district court. With respect to cases "arising under" federal law, the circumstances giving rise to Article III jurisdiction at the district or trial court level may or may not exist when a party seeks appellate review either in the federal Court of Appeals or in the Supreme Court. Thus, a case that arises under federal law when it is filed in the district court does not necessarily also arise under federal law for purposes of appeal.
To determine whether a case arises under federal law at any stage of litigation it is necessary to define just what "arising under" means. The Supreme Court long ago gave meaning to that phrase in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821), where the Court held that a case arises under federal law, such as the Constitution, when an interpretation of the federal law in question is necessary to reach a correct decision. That definition tracks closely with the Court's earlier decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which is usually cited as establishing the authority of the Court to declare laws enacted by Congress to be void and of no effect when they conflict with the Constitution. As important as that holding may be, equally important is the reasoning employed by Chief Justice John Marshall in reaching that conclusion. According to Marshall, the authority to declare laws unconstitutional was necessarily contained within the power and duty of the Court to decide cases because a case can only be decided correctly after the Court has first determined what the law is and how it is to be applied to the facts before the court. Because the Constitution is the supreme law of the land, laws enacted by Congress must conform to the Constitution. Any law that is contrary to the Constitution must be ignored or otherwise declared invalid if a case is to be decided correctly and in conformity with federal law, including the Constitution.
The Constitution does not expressly grant the federal courts any authority to declare what the law is generally or to declare any law to be unconstitutional. It grants only the authority to decide cases. The power to decide what the law is exists only when doing so is necessary to determine the outcome of a case. Put another way, it is the duty and obligation of the federal courts to decide cases correctly and in conformance with the law that gives them the power to decide what the law is, but only to the extent it is necessary to decide the case.
The same principle applies when determining whether the appellate jurisdiction under Article III is present. A case arises under federal law at the appellate stage only when the interpretation and application of federal law by the appellate court is necessary to reach a correct determination of the case. If the outcome of a case can be determined without the interpretation and application of federal law by an appellate court, appellate jurisdiction under Article III does not exist.
There is no doubt Trump's petition for review to the Supreme Court was based on federal law. Trump claimed that he could not be prosecuted for his alleged attempts to overturn the results of the 2020 presidential election because he was the elected President at the time the acts were committed and had immunity from prosecution under Article II. But, that provides only a partial answer to whether the Supreme Court had jurisdiction. Appellate jurisdiction under Article III would exist only if it was necessary for the Supreme Court to rule on Trump's immunity claim in order to reach a correct determination of the case.
It is the last part that was missing. The district court had denied Trump's motion to dismiss the Indictment based on his claim of presidential immunity. That ruling had been affirmed by the D.C. District Court. At that point, there were a number of possible outcomes that could have occurred that would have made it entirely unnecessary for either the D.C. Circuit Court or the Supreme Court to decide whether Trump was immune from prosecution. The Special Prosecutor could have decided to dismiss the Indictment in its entirety bringing the case to an end. The district court could have dismissed all charges for reasons unrelated to Trump's immunity claim. The charges could have been resolved by Trump pleading guilty to one or more charges and giving up any right to appeal. Alternatively, Trump could have been acquitted by a jury of all charges at a trial. In each of those instances, the outcome would have been a correct outcome so long as all applicable federal laws had been followed. No ruling on Trump's claim of immunity by an appellate court would be necessary. An appellate ruling on that question would become necessary only in the event Trump was ultimately convicted of one or more offenses and he appealed his conviction on grounds of immunity. Therefore, appellate jurisdiction under Article III was not present at the time Trump sought review in the Supreme Court. The Court should have denied the petition for review for lack of jurisdiction and returned the case to the district court without making any ruling on the question of immunity.
As it is, the Supreme Court did not make any decision that actually determined the outcome of the case in any way. Although the Court's opinion purports to establish a general rule that a former president is immune from prosecution for certain types of conduct, it leaves unanswered how that ruling would affect the outcome of Trump's case. The Court did not order the district court to dismiss any of the charges against Trump based on his claim of immunity. Nor did the Court rule that Trump was not immune from prosecution as to any charges. Instead, the Court sent the case back to the district court for a "fact-specific" analysis of the allegations in the Indictment to determine if Trump was immune from prosecution on any of the charges. Every potential outcome that was available before Trump sought review by the Supreme Court remained available after the Court issued its opinion. Nothing in the Court's opinion precludes conviction on any of the charges in the Indictment or requires dismissal of any charges. Thus, the opinion cannot be properly characterized as having decided the case or determined the outcome of the case one way or another either in whole or in part.
As a result, the Court's ruling that former presidents have of immunity for "official acts" is undermined by the fact that the Court lacked jurisdiction under Article III to consider and decide the case as presented. The question of immunity had not yet become a question that had to be decided in order to reach a correct determination of the case, which was the only legitimate task for the Court and the only legitimate reason for exercising its judicial power. It is not the Supreme Court's job, or the job of any court, to decide what the law is or what the law should be except when doing so is necessary to decide the outcome of a case. If a court, including the Supreme Court, is not making a decision that determines the outcome of a case in some manner, then it has no business making any decision at all and no authority under the Constitution to do so.
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