The Clear Statement Rule and the Major Question Doctrine As Substantive Separation of Powers Canons

The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.

During oral argument in the Trump immunity case, Justice Kavanaugh articulated a strong understanding of the "clear statement" rule. Under this principle, statutes should be read to not apply to the President unless there is a clear statement that Congress intended to subject the President to that constraint. Kavanaugh suggested there is always a "serious constitutional question whether a statute can be applied to the president's official acts." I wrote about some of Kavanaugh's questions in this post.

Professor Mike Ramsey observed that the clear statement rule, or the "presidential nonapplicability canon (if we can call it that) parallel a view of the major questions doctrine as a substantive canon." I agree with Ramsey. Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.

The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.

I recognize that Justice Barrett is less comfortable with the major question doctrine as a substantive canon, and said as much in the student loan case. Indeed, I question whether Justice Barrett would have joined Justice Gorsuch's Gundy dissent–she may take Justice Scalia's view on the non-delegation doctrine. Even so, I think the clear statement rule is even more justifiable in the context of federal criminal rules for a precise reason: the notion that the sitting President could be prosecuted for a federal crime would have been a non-sequitur to the framers. Regardless of what you think about Nixon v. Fitzgerald presidential immunity–a doctrine that has no real grounding in text or history–the President is the embodiment of the executive branch, and it could never have been fathomed that a President would be indicted by his own subordinates.

Of course, we still live in the shadow of Morrison v. Olson, which, as Justice Kavanaugh explained, was a "terrible decision for the presidency and for the country." Whether we are talking about the mostly-independent independent counsel or the quasi-independent special counsel, the mechanism by which a sitting President could be subjected to the criminal laws does not sit well with the separation of powers. An OLC opinion stating that the sitting President cannot be indicted is cold comfort for me. I don't know if Barrett agrees with Kavanaugh on that point.

What about prosecuting a former President? During oral argument, hypotheticals were raised about whether Presidents Roosevelt and Kennedy could have been indicted after they left office. Of course, such prosecutions would have been impossible, since both Presidents died in office, but we can still consider the hypotheticals. I don't know that the possibility of prosecution after the President leaves office changes the calculus very much. Then again, King Charles I could not be reached for comment.

If we assume that a statute of limitation is greater than four years, any decision that a sitting President makes would be affected by the fear that he could be prosecuted once he leaves office–indeed he would likely be prosecuted by the administration of his leading political opponent. Experiences in countries around the worlds attests to how common this phenomenon is. It is true that the Impeachment Disqualification Clause considers that a person can be convicted of a crime even after being removed from office, but there are a range of individuals who are subject to impeachment. The President is somewhat unique.

One final point on "Officer stuff." Did you really think you'd read an entire post of mine without talking about "Officer stuff"? During the oral argument in Trump v. Anderson, Justices Jackson and Gorsuch both asked why the President was not specifically enumerated in the list of covered offices in Section 3–those who had to take the oath and those who would be subject to disqualification. Jackson and Gorsuch were articulating a version of the clear statement rule: before we read a provision of the Constitution to regulate the President, we want a clear statement that the constitutional text applies to the President. General language about offices and officers is not enough. There are many reasons to require a clear statement of applicability to the President in many contexts. The Trump immunity case might be one instance to explore that issue.