Nixon v. Fitzgerald

Chief Justice Burger,

concurring.

I join the Court’s opinion, but I write separately to underscore that the Presidential immunity derives from and is mandated by the constitutional doctrine of separation of powers. Indeed, it has been taken for granted for nearly two centuries.1 In reaching this conclusion we do well to bear in mind that the focus must not be simply on the matter of judg*759ing individual conduct in a fact-bound setting; rather, in those familiar terms of John Marshall, it is a Constitution we are expounding. Constitutional adjudication often bears unpalatable fruit. But the needs of a system of government sometimes must outweigh the right of individuals to collect damages.

It strains the meaning of the words used to say this places a President “above the law.” United States v. Nixon, 418 U. S. 683 (1974). The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties.2 Ante, at 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.3

*760In his dissenting opinion, Justice White confuses “judicial process” in the subpoena sense with a civil damages suit. Post, at 778, n. 23. He quotes language from United States v. Nixon, supra, at 706, as though that language has some relevance to the matter of immunity from civil damages:

“[Njeither the doctrine of separation of powers, nor the need for confidentiality. . . without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Post, at 782. (Emphasis added.)

First, it is important to remember that the context of that language is a criminal prosecution. Second, the “judicial process” referred to was, as in United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J., sitting at trial as Circuit Justice), a subpoena to the President to produce relevant evidence in a criminal prosecution. No issue of damages immunity was involved either in Burr or United States v. Nixon. In short, the quoted language has no bearing whatever on a civil action for damages. It is one thing to say that a President must produce evidence relevant to a criminal case, as in Burr and United States v. Nixon, and quite another to say a President can be held for civil damages for dismissing a federal employee. If the dismissal is wrongful the employee can be reinstated with backpay, as was done here. See n. 5, infra.

The immunity of a President from civil suits is not simply a doctrine derived from this Court’s interpretation of common law or public policy. Absolute immunity for a President for acts within the official duties of the Chief Executive is either to be found in the constitutional separation of powers or it does not exist. The Court today holds that the Constitution mandates such immunity and I agree.

The essential purpose of the separation of powers is to allow for independent functioning of each coequal branch of *761government within its assigned sphere of responsibility, free from risk of control, interference, or intimidation by other branches. United States v. Nixon, supra; Gravel v. United States, 408 U. S. 606, 617 (1972). Even prior to the adoption of our Constitution, as well as after, judicial review of legislative action was recognized in some instances as necessary to maintain the proper checks and balances. Den on the Dem. of Bayard & Wife v. Singleton, 3 N. C. 42 (1787); Cases of the Judges of the Court of Appeals, 8 Va. 135 (1788). Cf. Marbury v. Madison, 1 Cranch 137 (1803). However, the Judiciary always must be hesitant to probe into the elements of Presidential decisionmaking, just as other branches should be hesitant to probe into judicial decisionmaking. Such judicial intervention is not to be tolerated absent imperative constitutional necessity. United States v. Nixon, supra, at 709-716.4 The Court’s opinion correctly observes that judicial intrusion through private damages actions improperly impinges on and hence interferes with the independence that is imperative to the functioning of the office of a President.

*762Exposing a President to civil damages actions for official acts within the scope of the Executive authority would inevitably subject Presidential actions to undue judicial scrutiny as well as subject the President to harassment. The enormous range and impact of Presidential decisions — far beyond that of any one Member of Congress — inescapably means that many persons will consider themselves aggrieved by such acts. Absent absolute immunity, every person who feels aggrieved would be free to bring a suit for damages, and each suit — especially those that proceed on the merits— would involve some judicial questioning of Presidential acts, including the reasons for the decision, how it was arrived at, the information on which it was based, and who supplied the information. Such scrutiny of day-to-day decisions of the Executive Branch would be bound to occur if civil damages actions were made available to private individuals. Although the individual who claims wrongful conduct may indeed have sustained some injury, the need to prevent large-scale invasion of the Executive function by the Judiciary far outweighs the need to vindicate the private claims. We have decided that in a similar sense Members of both Houses of Congress — and their aides — must be totally free from judicial scrutiny for legislative acts; the public interest, in other words, outweighs the need for private redress of one claiming injury from legislative acts of a Member or aide of a Member.5 The Court’s concern (and the even more emphatic con-*763cems expressed by Justice White’s dissent) over “unrem-edied wrongs” to citizens by a President seem odd when one compares the potential for “wrongs” which thousands of congressional aides, prosecutors, and judges can theoretically inflict — with absolute immunity — on the same citizens for whom this concern is expressed. See n. 2, supra.

Judicial intervention would also inevitably inhibit the processes of Executive Branch decisionmaking and impede the fimctioning of the Office of the President. The need to defend damages suits would have the serious effect of diverting the attention of a President from his executive duties since defending a lawsuit today — even a lawsuit ultimately found to be frivolous — often requires significant expenditures of time and money, as many former public officials have learned to their sorrow. This very case graphically illustrates the point. When litigation processes are not tightly controlled— and often they are not — they can be and are used as mechanisms of extortion. Ultimate vindication on the merits does not repair the damage.6

I fully agree that the constitutional concept of separation of independent coequal powers dictates that a President be immune from civil damages actions based on acts within the scope of Executive authority while in office.7 Far from plac*764ing a President above the law, the Court’s holding places a President on essentially the same footing with judges and other officials whose absolute immunity we have recognized.

Presidential immunity for official acts while in office has never been seriously questioned until very recently. Ante, at 750-752, n. 31. I can find only one instance in which, prior to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), a citizen sued a former President for acts committed while in office. A suit against Thomas Jefferson was dismissed for being improperly brought in Virginia, thus precluding the necessity of reaching any immunity issue. Livingston v. Jefferson, 15 F. Cas. 660 (No. 8,411) (CC Va. 1811).

In their “parade of horribles” and lamentations, the dissents also wholly fail to acknowledge why the same perils they fear are not present in the absolute immunity the law has long recognized for numerous other officials. At least 75,000 public officers have absolute immunity from civil damages suits for acts within the scope of their official functions. The dissenting opinions manifest an astonishing blind side in pointing to that old reliable that “no man is above the law.” The Court has had no difficulty expanding the absolute immunity of Members of Congress, and in granting derivative absolute immunity to numerous aides of Members. Gravel v. United States, 408 U. S. 606 (1972).

We have since recognized absolute immunity for judges, Stump v. Sparkman, 435 U. S. 349 (1978), and for prosecutors, Imbler v. Pachtman, 424 U. S. 409 (1976), yet the Constitution provides no hint that either judges, prosecutors, or congressional aides should be so protected. Absolute immunity for judges and prosecutors is seen to derive from the common law and public policy, which recognize the need to protect judges and prosecutors from harassment. The potential danger to the citizenry from the malice of thousands of prosecutors and judges is at once more pervasive and less open to constant, public scrutiny than the actions of a President.

In United States v. Brewster, 408 U. S. 501 (1972), we held that the Speech and Debate Clause does not prohibit prosecution of a Senator for accepting a bribe designed to influence his legislative acts.

Justice White suggests that prior to today, Presidents, prosecutors, judges, congressional aides, and other officials “could have been held liable for the kind of claim put forward by Fitzgerald — a personnel decision allegedly made for unlawftil reasons.” Post, at 767, n. 2 (emphasis added). But the law does not permit a plaintiff to recite “magic” words in pleadings and have the incantation operate to make these immunities vanish. Justice White errs fundamentally in treating all of the above officials as if the scope of their authority were identical. The authority of a President as head of the Executive Branch of our Government — a wholly unique office — is far broader than that of any other official. As the Court notes, a President has authority in the course of personnel changes in an executive department to make personnel decisions. If the decision is wrong, statutory remedies are provided. See n. 5, infra. This is not to say that, in a given case, it would not be appropriate to raise the question whether an official — even a President — had acted within the scope of the official’s constitutional and statutory duties. The doctrine of absolute immunity does not extend beyond such actions.

Gravel v. United States, 408 U. S. 606 (1972). The Federal Tort Claims Act of 1946 reflects this policy distinction; in it Congress waived sovereign immunity for certain damages claims, but pointedly excepted any “discretionary function or duty . . . whether or not the discretion involved be abused.” 28 U. S. C. § 2680(a). Under the Act, damage resulting from discretionary governmental action is not subject to compensation. See, e. g., Dalehite v. United States, 346 U. S. 15 (1953). For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.

In this case Fitzgerald received substantial relief through the route provided by Congress: the Civil Service Commission ordered him reinstated with backpay. App. 87a-88a. Similarly situated persons are therefore *763not without an adequate remedy. But see post, at 797 (White, J., dissenting). In addition, respondent Fitzgerald has also received a settlement of $142,000. It can hardly be said he has had no remedy.

Judge Learned Hand described his feelings:

“After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” 3 Lectures on Legal Topics, Association of the Bar of the City of New York 105 (1926).

The Court suggests that “we need not address directly” whether Congress could create a damages action against a President. Ante, at 748, n. 27. However, the Court’s holding, in my view, effectively resolves that issue; once it is established that the Constitution confers absolute immunity, as the Court holds today, legislative action cannot alter that result. Nothing in the Court’s opinion is to be read as suggesting that a constitu*764tional holding of this Court can be legislatively overruled or modified. Marbury v. Madison, 1 Cranch 137 (1803).