Is the Administrative State Above the Law?
“No one is above the law,” we say—“we” being those of a basically republican frame of mind, and “republican” being the belief (as relevant here) that governmental actors are those who exercise delegated authority with the majority consent of the governed, but who are otherwise no different from the rest of us. But who is “no one”?
“No one,” one might be forgiven for thinking, is absolute. A null set. But when the Supreme Court addressed President Trump’s claim of immunity from criminal prosecution last year, it conditionally populated that set.[1] The question now is how many conditional occupants the set contains. Because the immunity the Court created is status-based, rather than transactional, the answer might be a very worrying number. I’ll first describe the nature of this immunity, and then explore who—other than the president—might claim it.
We typically think of immunity from criminal prosecution as occasional unsavory bargains between prosecutors and suspects in which the former agree not to prosecute the latter in exchange for assistance in landing bigger fish. Such transactional immunity can exist at least semi-comfortably within a legal order in which no one is above the law because it represents the exercise of prosecutorial discretion, not because the suspect’s status exempts him from operation of the law.
In the Trump case, however, the then-former president claimed a status-based immunity from criminal prosecution. That is, he said he cannot be prosecuted for things done as president because, contra our republican understanding of governmental actors, presidents qua presidents are beyond the reach of the criminal law. Or to put it in colloquial terms, he said he is above the law.
And the Supreme Court agreed, at least in part. The opinion separately considered three categories of presidential actions: (1) actions in the president’s unofficial capacity; (2) actions arising out of his core constitutional duties; and (3) actions outside the core but nonetheless taken in his official capacity.
With respect to the first category, the Court said the president enjoys no immunity. That’s correct and could hardly be otherwise. If a criminal indictment describes behavior that has nothing to do with the office, it’s hard to imagine how an immunity that inheres in the office would have any application. The Court was on perfectly solid ground with respect to unofficial acts.
The Court’s conclusion with respect to the second category—core constitutional duties—was essentially correct, even if it was improperly framed. Actions encompassed by this category, the Court said, include such things as the “Power to Grant Reprieves and Pardons for Offences against the United States,”[2] the power to remove those who wield executive power, and the power to recognize foreign countries. For these actions, the Court said, the president enjoys absolute immunity. But this isn’t really about immunity at all, as the Court’s own reasoning demonstrated. It’s about whether Congress has authority to criminalize conduct the Constitution authorizes. Presidents can’t be prosecuted for performing core constitutional duties not because they are immune from the law’s proscriptions, but because Congress’s grasp exceeds its reach when it enacts a law that purports to criminalize what the Constitution either allows or requires. Such a law is no law at all, which means there is no work for the concept of immunity to do.
The Court’s treatment of the third category, however, was so loose in the joints that one could easily read it as granting the president the freedom to engage in a little criminality in service of “tak[ing] Care that the Laws be faithfully executed.”[3] Because he rarely acts alone in exercising that responsibility, access to this immunity is unlikely to be confined to the president alone.
The Court’s rationale for immunizing the president from criminal prosecution for his non-core official acts was entirely consequentialist. It observed, accurately, that the Framers anticipated an executive who would be “energetic, vigorous, decisive, and speedy” in the exercise of his official duties, and that these characteristics would be necessary to “ensure good government” inasmuch as a “feeble executive implies a feeble execution of the government.”[4] But the conclusion it drew from these observations is completely inscrutable.
According to the Court, this need for energy, and vigor, and decisiveness cannot be tempered by the criminal law. The Court said “[t]he hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under a pall of potential prosecution” is an unacceptable risk to the government’s function.[5] After all, “[a] President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.”[6]
Yes. Yes, he might. It’s almost like the point of criminal law is to cause people to opt for non-criminal behavior, and to punish those who don’t. All mere mortals operate under the apprehension of prosecution for behavior proscribed by the criminal law. That’s what it means to not be above the law. If you are free to act without the apprehension of criminal prosecution because of who you are, that is the very definition of being above the law.
Now, to be fair, the Court said this immunity is only presumptive—a president is free to engage in criminal behavior only if the government cannot “show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”[7] In the hands of a skillful attorney, that exception from presumed immunity is a vast, vast playground.
So presidents are conditionally above the law. But are they the only ones? Although the Constitution vests all of the executive power in one person—the president—no one has ever expected him to exercise it alone. Instead, the Framers “expected that the President would rely on subordinate officers for assistance.”[8] When those subordinate officers act, they act with the authority of the president. Which is why they must all be accountable to him. As James Madison explained, “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.”[9] It is only with that dependence that the officers’ exercise of executive “power acquires its legitimacy and accountability to the public … .”[10]
These subordinate officers and their employees are what we regularly refer to as the “administrative state,” and their number is today pushing three million. There is nothing in the Court’s Trump opinion that would necessarily preclude its consequentially-defined immunity from applying to them as well. After all, if there is an aspect of “tak[ing] Care that the Laws are faithfully executed” that the president cannot do on his own, wouldn’t the “energetic, vigorous, decisive, and speedy” attention of the executive branch require that his subordinates also operate without being “apprehensive that criminal penalties may befall” them for carrying out the president’s directives? If they were hobbled with such concerns, wouldn’t that enfeeble “the execution of the government”?
“No one is above the law.” Except, perhaps, the president and his three million employees. I think the Court will come to regret its decision in this case. Precedents have a bad habit of not sitting still—they metastasize over time. I described this effect in my Gray Center article and podcast on how the public rights doctrine, which originated in an ill-considered bit of dictum in an old case, eventually resulted in the executive branch’s practice of punishing American citizens without a trial.
Edmund Burke observed that American’s don’t “judge of an ill principle in government only by an actual grievance.” He said they also “anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.” Whatever your thoughts about the last couple of presidential administrations, the immunity created by Trump v. United States is going to apply to presidents that you like as well as to those you don’t. We should be trying to snuff the taint in this breeze while the misgovernment it portends is still at a distance, especially when the distance isn’t all that great.
[1] Trump v. United States, 603 U.S. 593 (2024).
[2] See U.S. Const. Art. II, § 2, cl. 1.
[3] Id. § 3.
[4] Trump, 603 U.S. at 610 (cleaned up).
[5] Id. at 613.
[6] Id.
[7] Id. at 615.
[8] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197, 204 (2020).
[9] 1 Annals of Cong. 499 (1789).
[10] United States v. Arthrex, Inc., 594 U.S. 1, 11 (2021).
October 17, 2025