By Tracy Waller, MPH, Esq.
Many people are asking ‘What is happening in the United States? What is Presidential power and immunity? Throughout our Policy Unpacked series, our goal is to take topics from the administrative and legal system and make them easier to understand. Presidential Power and Immunity aims to further this effort by breaking down complex legal jargon from today’s headlines. Be sure to check out the other topics in the Policy Unpacked section on our website.
What is Presidential Immunity?
Presidential Immunity is the concept that the president of the United States cannot get “in trouble” for certain things he does while he holds the title of president.
Does Anyone Else Have Immunity?
Presidential Power and Immunity
The U.S. Constitution includes a clause for members of Congress (called legislative immunity in the Speech or Debate Clause) which says they cannot get in trouble for anything they vote for or do as part of their duties as a Congressperson. The idea is that you want your representatives to vote for what they think is right–not based out of fear of punishment.
But the Constitution does not say anything about presidential immunity.
Why Does This Matter Now?
First, let’s explain the Two Branches of the Legal System!
There are two branches of the legal system: civil and criminal.
Criminal law deals with behaviors that go against the public, society, or the state—even if one person was hurt or injured. Examples include: major felonies such as murder or burglary, misdemeanors such as disturbing the peace, and statutory crimes like financial crimes. The goal is usually to punish the wrongdoer.
Civil law deals with behaviors that go against an individual or other private party, such as a company. Examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage. The goal is usually to provide compensation for harm.
The History of Presidential Immunity- Until this Presidency
Courts use the term immunity to mean protection from being sued or getting in trouble for something. The president of the United States does not have absolute immunity from everything he does. If a president had “absolute immunity,” he would have complete and unchecked power, or what the Supreme Court often calls “unfettered power,” meaning he could do what he wanted without limitations. But, the president must have immunity from some acts– because he cannot lead the United States based on fear. Because presidential immunity is not written in the Constitution, it is determined by the courts. In 1982, in Nixon v. Fitzgerald, the Supreme Court found that the president was immune from civil liability for official acts during his presidency.
In 1997, in Clinton v. Jones, the Supreme Court held that a president does not have absolute immunity from civil cases that started before his presidency if the lawsuit does not interfere with his presidential duties.
The Supreme Court and Presidential Power: Trump v. United States
On July 1, 2024, the Supreme Court held for the first time that a president cannot be criminally prosecuted for “official acts,” such as the things the Constitution has given him the power to do. This means that the president can do things like issue presidential pardons, command the military, execute laws, control the executive branch however he wants (under the presumption of it all as part of his official duties), without worrying about criminal lawsuits against him. He can also appoint judges and manage immigration. As part of the Trump v. United States decision, Chief Justice Roberts emphasized that neither Congress nor the courts can limit the power granted only to the president under the Constitution. This Supreme Court decision gives President Trump a lot of power in his presidency because it is harder to hold him accountable for presidential acts in a court of law.
Why Does This Matter Today?
L.A. Protests
The United States is seemingly in a state of chaos. The hot topic changes rapidly. When I initially started this post, groups of people in Los Angeles, California had just begun protesting the deportation raids by Immigration and Customs Enforcement (ICE). According to one source, President Trump deployed nearly 7,000 members of the U.S. National Guard and 700 active-duty Marines to Los Angeles (LA). People in LA have been protesting against deportation raids by ICE for weeks. Since President Trump has taken office, he has taken the stance against illegal immigration and undocumented migrants (although he pledged to pause raids on farm workers and people in the hotel and leisure industry– focusing on “criminals”). LA parks have been raided. Schools have linked immigration raids to increased absenteeism. The Trump administration has also illegally deported people (against court orders), detained legal migrants, and has misinterpreted the 14th Amendment.
Active duty troops (U.S. Marines) are not allowed to participate in non-military law enforcement because of something called the Posse Comitatus Act,unless a President says he needs them and puts something in place called the Insurrection Act. The Insurrection Act is used when a president needs military force to stop a revolt or rebellion against the government. In 1992, President George H.W. Bush used the Insurrection Act in response to the LA riots that followed the acquittal of police officers who had assaulted Rodney King.. President Trump did not ask for the Insurrection Act to be used.
President Trump brought in the California National Guard by using a law called “National Guard in Federal Service: call,” that says the National Guard can help states during certain events, including during violent situations or danger of violence against the United States. In using this law, the order is given through the governor of the state. The governor of California,Governor Newsom, has said many times that he does not want the National Guard in California.
The last time a president sent the National Guard to a state without the governor’s permission was during the civil rights era of 1965 to the state of Alabama. Pete Hegseth, the Defense Secretary, testified in Congress on Tuesday, June 10, 2025, that he did not know what legal authority President Trump was using to deploy troops to the LA protests. A Pentagon finance officer at the hearing told House members that the deployment would cost the Defense Department $134 million.
A Mess in the Courts: June 27, 2025 Update
Governor Newson called the deployment of troops, “un-American,” and filed a lawsuit on June 9, 2025 against President Trump for deploying the military and National Guard against the state’s wishes, without reason and “intentionally causing chaos” and “terrorizing communities.”. He also accused President Trump of violating the 10th Amendment to the United States Constitution.
On June 12, 2025, United States District Judge Charles Breyer issued a temporary restraining order (TRO) which began at noon on June 13, 2025, and directed President Trump to return control of the California National Guard to Governor Newsom. That never happened.
The same day, President Trump filed an emergency motion for stay in the 9th Circuit, which asked the higher court to review the decision immediately.
The United States Court of Appeals for the 9th Circuit granted the government’s emergency motion, keeping the National Guard in place until a hearing could be held. A remote hearing was held by the 9th Circuit before a three-judge panel on June 17, 2025 and on June 19, 2025 where all three judges on the 9th Circuit panel concluded that it was likely that President Trump acted within his legal authority when he used the National Guard. In their 38-page opinion, the judges included that while presidents do not have “unfettered power” to take control over a state’s troops, the Trump administration showed enough evidence for using the National Guard. The administration provided examples including violent acts by protestors in LA throwing rocks and molotov cocktails into the streets.
So What Happens Now?
Judge Breyer in the United States District Court held a hearing on June 20, 2025 that he called before the Trump administration and asked the 9th Circuit to weigh in. The 9th Circuit did not rule on whether the Trump administration was in violation of the Posse Comitatus Act (using federal troops like the Marines in civilian law enforcement except for certain reasons), so Judge Breyer said that he might be able to take on that issue. He asked for both parties to provide their briefs (or their arguments) by Monday, June 23, 2025 on that issue. The hearing is ongoing.
President Trump’s June 7, 2025 Executive Order called for 60 days of troops or at the discretion of the Secretary of Defense. Meanwhile, ICE raids continue to make headlines as Marines are deployed in other parts of the country, including Florida.
Really Quickly- Why a 3-Judge Panel?
A three-judge panel is a group of three judges who hear and decide a case. This is used in certain types of cases, including constitutional challenges to laws. Judges on these panels rotate, so that all judges hear a variety of cases and no single judge works with the same colleagues. In the U.S. federal court system, most appeals are initially heard by three-judge panels, while en banc review means a hearing in front of all of the judges. This is usually reserved for really tricky,important cases, or when a panel decision conflicts with something that has been decided before.
Fighting Back Against the Raids: Legal Action by the People
On July 2, 2025, a class action lawsuit was filed in a United States District Court in California by five petitioners and four non-profit organizations against Kristie Noem, the Secretary of the Department of Homeland Security and Todd M. Lyons, the Acting Director of the U.S. Immigrations and Customs Enforcement. On July 7, 2025, New York Attorney General Letitia James and 17 other attorneys general (attorneys that represent their states) filed an amicus brief (a document with arguments that shows their support) backing the lawsuit challenging the Trump administration’s immigration enforcement raids in LA.
Will There be a Constitutional Crisis? Are We In One Right Now?
A Constitutional Crisis is when a court orders something and the administration says, “no.” It is an attempt to go around the rules consistently when one branch of government disagrees with the other, but they do not follow the rules.
It is hard to say if we are in one and people disagree whether President Trump is acting within the realm of the Constitution and the courts since this president has been testing the use of potential presidential powers that previous presidents have not tested.
Right now, the president continues to issue a lot of executive orders which cause increased lawsuits in lower courts and an unprecedented number of cases against the government–which means the Supreme Court has had more cases than usual on their shadow docket.
Definitions:
- Absolute immunity: means that you cannot get in trouble with the law for things that you do. This term is used to describe the power that it would unfairly give presidents if they were not held responsible for any crimes they committed while in office if we gave them absolute immunity.
- Amicus Brief: a legal document that is filed by a person or group in support of one of the parties that makes extra arguments and legal arguments for that side to show how the judge’s decision would affect people other than just those parties. The third party is called amicus curiae or “friend of the court.”
- Civil law: Part of the law that deals with disagreements between people or organizations and typically provides compensation for the harm caused.
- Civil liability: when a court orders a person to pay the other person for damages or follow other orders from the court in a lawsuit.
- Constitutional crisis: when a court orders something and the administration says, “no.” It is an attempt to go around the rules– consistently– when one branch of government disagrees with the other, but they do not follow the rules.
- Criminal law: Part of the law that deals with actions that are considered harmful or dangerous to society. It defines what behaviors are crimes and sets out the rules for what happens when someone is accused of one of those crimes.
- Criminal liability: the legal responsibility a person has for committing a crime; a person can face consequences including fines, jail time, or other forms of punishment.
- En banc review: a hearing in front of all of the judges on a three-judge panel.
- The Fourteenth Amendment: the words of the amendment say that everyone born or “naturalized” into the United States are citizens of the United States. (Naturalized means to become citizens of.)
- Insurrection Act: the U.S. law that allows the president to deploy the military and to send the National Guard to individual states in special cases, like if there is a rebellion against the government of the United States– with the permission of the governor in the states he is deploying them to.
- Legislative immunity: immunity Congress has which states that they cannot get in trouble for anything they vote for or do as part of their duties as a Congressperson.
- Posse Comitatus Act: signed into law in 1878, and says that active duty troops are not allowed to participate in non-military law enforcement except in certain cases.
- Presidential immunity: that a president can be “immune” or not get in trouble for certain wrongdoings he commits while he is president
- Temporary restraining order (TRO): a court order to stop someone from taking certain actions for a limited amount of time, usually in urgent situations
- The Tenth Amendment: says that the powers not given to the President of the United States in the Constitution, are given to the states
- Three-judge panel: a group of three judges who hear and decide certain types of cases.
- Unfettered power: what the Supreme Court calls it when a president has complete and unchecked power
