“Above The Law”

On Immunity and the Force(s) of Law

This is just a brief effort to disentangle some conceptual confusions about what “immunity” means, about its relationship to “the law,” and about what if anything it means to affirm, or deny, that the President is “above the law.” The classical law, it turns out, thought deeply about these issues and offers a clarifying distinction, premised on two different senses of the force of law.

In Trump v. United States, the Court recently held (very roughly; the precise details are unnecessary for my point here) that a former President is (1) absolutely immune from prosecution for acts in an official capacity taken on the basis of his exclusive constitutional powers; (2) at least presumptively immune from prosecution for acts in an official capacity taken on the basis of other constitutional and statutory powers; (3) not immune from prosecution for acts in a non-official or private capacity. Surrounding these were several collateral holdings — most importantly, for present purposes, that a former President is entitled to interlocutory review (an immediate appeal, before final judgment) of a trial court ruling denying immunity.

A familiar round of discourse immediately ensued. Justice Sotomayor, writing the lead dissent, charged that the Court had placed the Presidency “above the law” — indeed that “[i]n every use of official power, the President is now a king[.]” To this the majority offered an equally familiar response: immunity is itself part of the law. On this view, to say that immunity puts the President “above the law” begs the question of what the law is, by omitting the law of immunity. As the Chief Justice wrote for the majority, the Court’s holding “does not place [the President] above the law; it preserves the basic structure of the Constitution from which that law derives.”

Patently, the debate rests on an equivocation. The participants are using “the law” differently, and hence mean different things when one side affirms, and the other denies, that the President is “above the law.” When Justice Sotomayor charges that the decision put the Presidency “above the law,” she refers to law in the first-order sense of ordinary statutes and legal rules, including criminal statutes. In that limited sense, she is entirely correct that immunity places the President above the law, places the President (current or former) in a privileged legal position — which is why the majority repeatedly stressed the Presidency’s “unique position in the constitutional scheme” (internal quotation omitted). When the majority denies that the decision places the President “above the law,” by contrast, it refers not only to the first-order legal rules, but also to second-order rules about immunity from the first-order rules. In that different sense, the majority too is correct.

But the debate, taken as a whole, remains unsatisfying. It leaves unclear what exactly it means to say that “immunity” is part of the law. Is “immunity” an exemption from first-order legal obligation? If not, then what is it?

The classical law offers a distinction that can both clarify the meaning of immunity, and harmonize the views expressed in the majority and the dissent, showing that each is partially correct, in different ways and different senses. The distinction is between the so-called vis directiva and vis coactiva — the directive force of law and the coercive or constraining force of law. When a magistrate enjoys immunity in a certain domain, that magistrate is free from, or “above,” the coercive force of the law, but not from its directive force. Conversely, the magistrate is bound by “the law” in the sense of directive force, but not in the sense of its coercive force. Even as to sovereign rulers, who — unlike the President — are only subject to the ordinary civil law in virtue of their voluntary self-binding to the law, Aquinas held that the same distinction applies: “The prince is said to be not bound by the law with respect to its coercive force; since, properly speaking, no one is coerced by himself, and law has no coercive force except from the power of the prince. It is in this way, therefore, that the prince is said to be not bound by the law, because no one can pass a sentence of condemnation on him if he acts against the law…. As to the directive force of law, however, the prince is subject to the law by his own will, according to what is said in the Decretals [the foundational work of canon law] that ‘whatever law a man makes for another, he should keep himself’” (emphasis added).

As the italicized part of Aquinas’ formulation makes clear, the nub of this distinction is the difference between (1) being subject to substantive legal obligations, the guidance and direction of the law¹ and (2) being subject to coercive legal process (say, in a court) to examine the conformity of official acts to the substantive law. The distinction turns crucially on jurisdiction and remedies, not on whether substantive legal obligation applies at all. Substantively, the law governs, but jurisdictionally, the law provides for special exemption from legal process. As the majority in Trump v. United States rightly put it, “[t]he essence of immunity is its possessor’s entitlement not to have to answer for his conduct in court” (emphasis added; internal quotation omitted). That is why the majority was emphatic that interlocutory review of immunity questions would be available. The harm against which immunity protects is being made to answer to coercive legal process at all, and that harm would be accomplished or inflicted, not avoided, by a regime in which the President must wait until after trial to obtain full review of his claim of immunity.

After Trump v. United States, as before the decision, Presidents and former Presidents, even acting in an official capacity, are always bound by and subject to the law in its substantive sense, are always subject to the law’s directive force. It is just that, in an official capacity, they are at least presumptively not subject to the law’s coercive force, not subject to coercive legal process, such as criminal prosecution, to enforce the law.² The central distinction Trump v. United States draws is not a distinction between being or not being subject to “the law” tout court, but instead between the law’s vis directiva and vis coactiva, between being or not being subject to coercive process as to acts in the President’s official capacity. Justice Jackson’s dissent, unfortunately, collapsed and confused the distinction between vis directiva and vis coactiva by saying that “immunity is exemption from the duties and liabilities imposed by law” and then quoting an earlier case for the proposition that “immunity is exemption from legal process” (emphasis added; internal quotations omitted). Contrary to her claim that “[i]mmunity means that the law does not apply to the immunized person in the first place,” the classical view holds that immunity does not exempt anyone from the application and duties of law, from legal obligation, only from coercion by external tribunals.

Overall, then, Justice Sotomayor was partly right and partly wrong, as was the majority. It is true that the President (current or former) acting in an official capacity is, at least presumptively, “above the law” as to the law’s vis coactiva, but not as to its vis directiva. Both the dissent’s charge that the President is above the law, and the majority’s denial that the President is above the law, were half-truths, partial overstatements, although in different directions, as it were.

If there is an unmistakable error in this debate, it is that Justice Sotomayor suffers from a simplistic and, one has to say, typically modern misunderstanding of the legal position of kings and even emperors, and accordingly of the rule of law. (And this misunderstanding remains relevant even though, as I have stressed, the President is not a king, because it infects her understanding of the alternatives the Justices faced and of what the Court held). Although no body of law developed over nearly two millennia could be expected to speak entirely with one voice, important and frequently-invoked strands of classical public law affirmed that even the authority of sovereign rulers was very much constituted by and subject to the law, although those rulers were not subject to law’s coercive force in the sense that they could not be subjected to legal process. In the Code of Theodosius and Valentinian, as adopted and expanded in the Code of Justinian, the emperors themselves made this distinction in a famous provision known as the Digna Vox: “It is a statement worthy [digna vox] of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon that of the law. And, indeed, it is the greatest attribute of imperial power for the sovereign to be subject to the laws.  By this present edict we forbid others to do what we do not permit ourselves” (emphasis added). Centuries later, the jurist Bracton put the same point more poetically, but with implicit reference to the distinction between the law’s directive and coercive force: “The king has no equal within his realm. Subjects cannot be the equals of the ruler, because he would thereby lose his rule, since equal can have no authority over equal, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king.” Mutatis mutandis, so too of the unique legal position of the President. In his official capacity, the President has no equal within the constitutional order and is at least presumptively not subject to the coercive force of (many) ordinary legal rules and the ordinary legal process that enforces them. But his authority, even in an official capacity, is always subject to and indeed constituted by the law in its directive sense.

To be sure, if one thinks that the only cash value of being subject to the law is being subject to the coercive force of the law and legal process, if one thinks that no public magistrate ever obeys the law except in the shadow of coercion, then the distinction between the vis directiva and the vis coactiva will seem pragmatically meaningless. This is a public-law version of Holmes’ “bad man” theory of the law, according to which, in some interpretations anyway, only the threat of coercive legal process, civil or criminal, will induce the bad man to obey the law. There are many familiar debates here over what exactly Holmes meant and whether Holmes is correct, or not — debates that I need not rehearse here. Suffice it to say that there are good reasons, both theoretical and empirical, to think that magistrates, and people generally, often obey the law because they have internalized its directive force, regardless of its coercive force. For almost two millennia, classical jurists thought it highly meaningful, both conceptually and practically, to distinguish these two senses of the force(s) of law, to affirm that even sovereign rulers were subject in the directive sense to divine law, natural law, and fundamental customs of the constitutional order, and would ordinarily subject themselves to, would act in accordance with, the positive civil law. It takes all the boldness and epistemic self-confidence of the moderns to simply dismiss that whole tradition as a kind of illusion or self-deception.³

1. Note that the ground of subjection to the vis directiva of the law is different in the case of a sovereign Prince, on the one hand, and a President, on the other. In the former case, the ground of legal obligation is voluntary self-binding, in the latter, the involuntary obligation of all public officers to the constitutional order and duly enacted laws. But that difference is immaterial to their common exemption from the law’s vis coactiva.

2. Obviously I am simplifying and omitting important legal details here in order to get at the main point. Presidents, for example, are subject to legal process by subpoena to provide evidence in certain cases, as the majority reaffirmed. But that is a much lesser thing than being exposed to legal coercion oneself.

3. Even H.L.A. Hart, who suffered no lack of intellectual self-confidence vis-a-vis the classical legal tradition, did not go so far, and instead more or less recreated a version of the classical distinction, albeit in different words.