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Tuesday, March 27, 2018

Jurisdictionality of presidential immunity

Michael Dorf writes about a mini debate with Josh Blackman over whether Congress could by statute grant the President a temporal immunity from suit while in office (overcoming by statute Clinton v. Jones and, for the  moment, Zervos v. Trump). They agree that Congress could do so, although depart over whether Congress could grant the immunity in federal court only (Blackman) or federal and state court (Dorf). The debate, Dorf argues, is over the nature of this immunity--would it be a substantive limitation on other rights or a jurisdiction strip? Dorf says the former, which means it is substantive federal law applicable in state and federal courts.

Count me in the Dorf camp on this. Most immunities are proprly characterized as substantive rather than jurisdictional--they affect who can be sued and for what conduct, core questions of the merits of the claim.

Posted by Howard Wasserman on March 27, 2018 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink


Could Congress strip state courts of jurisdiction to hear claims against a sitting president but also offer immunity in federal court? Then, it doesn't matter whether immunity is jurisdictional or substantive. (For the record, I agree that immunity is substantive rather than jurisdictional.) There's a reasonable basis for proceeding in this way: presidential immunity presumably could be waived, so a state-jurisdiction strip coupled with federal-court immunity preserves the ability of the president to litigate when the president wishes but rightly locates such litigation exclusively in federal court. Note that, if state-court jurisdiction is not stripped, and if presidential immunity only applies in federal court, there's the likelihood that plaintiffs could subvert immunity by filing in state court, assuming that removal by the president would waive immunity (cf. Lapides).

Posted by: Scott Dodson | Mar 27, 2018 2:00:44 PM

Interesting , but lacking legal fundamental discipline with all due respect :

First , one needs to ask , what is immunity ? what is meant for ? Immunity as such, and as Universal concept in fact , meant only for one thing : carrying out duties , fulfilling functions , official duties and functions . Not for any personal benefit , but , solely public function . As such , one must pose the question : how immunity of such ( whether temporary or permanent ) is fulfilling or facilitating the function of the president , or indeed , how it does bar him from substantially functioning .

Second , and in accordance ,if proven so , that such immunity , is very substantial for the appropriate functioning of the president , it doesn't matter , whether it is implied in state court , or federal court , for , the purpose ( of functioning ) is a federal issue , and anyway a state issue as such , in very high level so ( like national security as brought therein ) .

Third , If it is temporary , and touches only Trump , this is not a law ! In that debate they were avoiding the issue of Patchak V.Zinke , but , this is the heart of the issue ( see there the dissenting opinion of judge Robert ) . This is because , it lacks general standards . It is applied randomly on one person and one case for stripping off jurisdiction of courts . Once you do it ,not only you do interfere with court functions and constitutional duties , but , once the law is lacking general standards or features , this is not a law !! But opportunistic intervention of Congress . Such law , doesn't dictate a norm , general norm , but rather influence , and dictates results , of specific case pending . This is a brutal intervention in jurisdiction and inherent constitutional duties of courts to prevail .


Posted by: El roam | Mar 27, 2018 11:44:58 AM

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