What is absolute immunity? [POLICYbrief]
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What is absolute immunity? [POLICYbrief]

The President enjoys absolute immunity from
civil damages liability for his official acts as President. The Founders never gave particular voice in
the Constitution to a provision that explicitly immunized the President, but the Supreme Court
has determined that the Constitution was intended to do so. Nixon against Fitzgerald was a landmark case,
really establishing the absolute immunity of the President. The case was brought by a former Air Force
analyst, who was fired from his job, he said, in retaliation for, uh, certain controversial
congressional testimony he gave, that was critical of a certain Air Force program. The Supreme Court held that the civil damages
action he brought could not be brought against the President because the President was absolutely
immune from civil damages liability for his official acts. The basic rationale of the case was that the
separation of powers and the President’s unique authorities and responsibilities as the Chief
Executive and the Commander in Chief in our Constitutional system protected him from civil
damages liability for his official acts. The President had to be able to exercise his
authority under Article II of the Constitution, without worry of possibly creating civil damages
liability to those who might be adversely affected by his official acts. Now, that doesn’t mean that the President
is above the law. Certainly with respect to official acts the
President takes, his actions can be challenged, and they can be reviewed in court, and if
they’re found to have exceeded his authorities under the Constitution or under the statutory
authority that he purports to be acting under, the President can be enjoined or his administration
can be enjoined to stop, essentially, doing the acts that are in excess of Constitutional
or statutory authority. If the President is acting in his unofficial
capacity, the President can be sued for civil damages. We know that from a case called Clinton against
Jones. That case was brought by a woman who claimed
that when the President had been Governor of Arkansas, that he had engaged in some inappropriate
sexual advances and harassment. The Supreme Court held that the President
does not have immunity from civil damages liability for acts undertaken in his unofficial,
that is in his personal capacity. The other remedy available for acts that are
deemed to exceed the President’s authorities or even, ultimately, to constitute criminal
activity, is impeachment. So, the President is never above the law.


  • Atom Bigod

    Dear Federalist society, why did you omit Ex Parte Young? Like if a libtard state wants to pass gun grab laws, and violate constitutional rights, the state actor violating the constitution, can be sued. There's also voluntary waiver of immunity. And Why didn't you mention injunctions, and common law aspects.

  • Crystal Dittrich

    "Never above the law" only in an official sense. These quite easily can make an executive de facto above the law.

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