Last week, President Biden published an article in the Washington Post in which he promised to ensure that “no person”—meaning no future President—”is above the law.” He seems to believe, incorrectly, that the Supreme Court had placed Donald Trump in a favored position by granting him immunity in its landmark decision three weeks ago.

It’s disturbing that after 36 years as a Senator and four years as President, Biden still does not understand what the Court actually did on immunity, and that it protected him and all future Presidents who take risks to protect the country.

What the Court said was that Presidents should receive immunity for “official acts,” the acts Biden himself and all his predecessors and successors, will perform legitimately every day as the President. It most certainly does not place any President, including Biden himself, “above the law” when he receives immunity for these acts.

The Constitution is very detailed in the authorities it grants to Congress—running on for nine sections in Article I. But in Article II, which provides authority to the President, the Constitution says only that “the executive Power shall be vested in the President of the United States.” In other words, the scope of “executive power” is not defined in the Constitution and its meaning is to be determined by the President himself as he proceeds through his duties.  

Consider all the various activities that we know the President performs, including enforcing the laws, dealing with foreign leaders, acting as commander in chief of the armed forces, waging war, making treaties, and granting clemency and pardons, to name only a few. These would all have been considered within the term “executive power” when the Constitution was framed.

There are many more presidential duties in the more complex world of the 21st Century, and the question is whether all these new activities are authorized under the Constitution’s general term, “executive power.” To take a recent event as an example, can the President force the Executive Branch to free a prisoner who has committed a serious crime, so he can be exchanged for an American who has been held hostage in a foreign country? What if the released prisoner later returns to the US and commits a murder? Is the President liable for creating the risk of the second crime, in office or afterward?

Now let’s consider the Supreme Court’s position when it was presented with Trump’s request for immunity—the first time the Supreme Court had ever been asked for this.

It’s clear from the language of the Constitution that the myriad things the President does every day—many of those mentioned above—are authorized by the Constitution. But Trump was asking the Court for immunity on matters that are not everyday duties of the President, and certainly not clearly within the scope of “executive power”—for example, his effort to overturn the 2020 election.

It’s likely that Trump presented this question to the Court only as a means of delay, which of course turned out to be successful, but the Court was required to take the question seriously. After all, any day a President may be required to take a completely unprecedented step—perhaps using the armed forces or the Intelligence Community—to save or take a life. If the President’s action is challenged and found to be outside his authority, he could be subject to ruinous civil damages or a criminal trial when he leaves office. The danger here, as the Court stressed, is that the President—for fear of his legal liability—will hesitate to take an act that will protect the Nation or even an individual. 

In the Trump case, then, the Court held that Presidents should be granted immunity for acts that can be clearly seen as official acts. But it did not grant immunity for Trump’s effort to overturn the 2020 election. Instead, it sent those activities back to the lower courts, where the facts will be determined in a trial-like environment that will—when returned to the Supreme Court—enable the Court to decide whether these activities could have come within the definition of “official acts.’’

Biden was seriously wrong in his claim that the Supreme Court had granted immunity so that Trump or others could be “above the law.” In reality, the Court granted immunity for acts that will protect Presidents in the future when they take risks to protect the country and its citizens. They will not be “above the law,” as he said, but protected by the law.  Biden’s proposal to “rectify” what the Court did will have the opposite effect if anyone acts on it. Let’s hope it is seen as the foolish step it was.

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