Supreme Court Review

Article Title

“Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities


By design, the presidency is exceptional. Other branches are plural. Congress, a bicameral legislature, was always meant to have scores of members and now has over 500. Due to Congress exercising the option of creating lower federal courts, the federal judiciary is larger still, with judicial power fractured among more than a hundred federal courts and hundreds of judges. In contrast, one person may command the military, steward foreign affairs, pardon federal offenses, direct the execution of federal law, and superintend the bureaucracy. The presidency is hardly all-powerful, for there are several express and implied constraints. But this level of concentrated authority is (and was) unique in the American experience. No other office holds a candle to the presidency’s power and responsibilities. The concentration of authority in the hands of one person explains why many read the Constitution and discovered a monarchy in all but name. But the exceptionality does not end there. A president is the only significant constitutional officer elected in a nationwide contest (the vice president does not count). The presidency is the only office subject to a rule that bars the foreign-born, a telling limit for an immigrant nation. The office has a unique, detailed oath. The presidency has rules designed to ensure immediate succession after death, resignation, or removal. Finally, the office has a special salary privilege, one barring congressional attempts to chasten through cuts or corrupt through increases. The matter considered here is whether the presidency enjoys additional privileges and immunities, beyond its salary security. Or, put another way, does the Constitution protect that office from certain slings and arrows that individuals, Congress, the courts, or the states might launch toward the incumbent? Is the highest office in the land that degree of exceptional?

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