Nixon v. Fitzgerald
457 U.S. 731 (1982)
Argued November 30, 1981; Decided June 24, 1982
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
POWELL,
J., delivered the opinion of the Court, in which BURGER, C.J., and REHNQUIST,
STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J.,
filed a concurring opinion,post, p. 457 U. S. 758. WHITE, J., filed a dissenting
opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ.,
joined, post, p. 457 U. S. 764. BLACKMUN, J., filed a
dissenting opinion, in which BRENNAN and MARSHALL, JJ.,
joined, post, p. 457 U. S. 797.
JUSTICE
POWELL delivered the opinion of the Court.
The
plaintiff in this lawsuit seeks relief in civil damages from a former President
of the United States. The claim rests on actions allegedly taken in the former
President's official capacity during his tenure in office. The issue before us
is the scope of the immunity possessed by the President of the United States.
I
In
January, 1970 the respondent A. Ernest Fitzgerald lost his job as a management
analyst with the Department of the Air Force. Fitzgerald's dismissal occurred
in the context of a departmental reorganization and reduction in force, in [457 U. S. 734] which his job was
eliminated. In announcing the reorganization, the Air Force characterized the
action as taken to promote economy and efficiency in
the Armed Forces.
Respondent's
discharge attracted unusual attention in Congress and in the press. Fitzgerald
had attained national prominence approximately one year earlier, during the
waning months of the Presidency of Lyndon B. Johnson. On November 13, 1968,
Fitzgerald appeared before the Subcommittee on Economy in Government of the
Joint Economic Committee of the United States Congress. To the evident
embarrassment of his superiors in the Department of Defense, Fitzgerald
testified that cost-overruns on the CA transport plane could approximate $2
billion. [Footnote 1] He
also revealed that unexpected technical difficulties had arisen during the
development of the aircraft.
Concerned
that Fitzgerald might have suffered retaliation for his congressional
testimony, the Subcommittee on Economy in Government convened public hearings on
Fitzgerald's dismissal. [Footnote 2] The
press reported those hearings prominently, [457 U. S. 735] as it had the earlier
announcement that his job was being eliminated by the Department of Defense. At
a news conference on December 8, 1969, President Richard Nixon was queried
about Fitzgerald's impending separation from Government service. [Footnote 3] The
President responded by promising to look into the matter. [Footnote 4]
Shortly after the news conference, the petitioner asked White House Chief of Staff
H.R. Haldeman to arrange for Fitzgerald's assignment to another job within the
administration. [Footnote 5] It
also appears that the President suggested to Budget Director Robert Mayo that
Fitzgerald might be offered a position in the Bureau of the Budget. [Footnote 6]
Fitzgerald's
proposed reassignment encountered resistance within the administration. [Footnote 7] In an
internal memorandum of January 20, 1970, White House aide Alexander Butterfield
reported to Haldeman that "'Fitzgerald is no doubt a top-notch cost
expert, but he must be given very low [457 U.
S. 736] marks in loyalty; and after
all, loyalty is the name of the game.' [Footnote 8]"
Butterfield
therefore recommended that "[w]e should let him bleed, for a while at
least.'" [Footnote 9] There
is no evidence of White House efforts to reemploy Fitzgerald subsequent to the
Butterfield memorandum.
Absent
any offer of alternative federal employment, Fitzgerald complained to the Civil
Service Commission. In a letter of January 20, 1970, he alleged that his
separation represented unlawful retaliation for his truthful testimony before a
congressional Committee. [Footnote 10] The
Commission convened a closed hearing on Fitzgerald's allegations on May 4,
1971. Fitzgerald, however, preferred to present his grievances in public. After
he had brought suit and won an injunction,Fitzgerald
v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755
(1972), public hearings commenced on January 26, 1973. The hearings again
generated publicity, much of it devoted to the testimony of Air Force Secretary
Robert Seamans. Although he denied that Fitzgerald
had lost his position in retaliation for congressional testimony, Seamans testified that he had received "some
advice" from the White House before [457 U. S. 737] Fitzgerald's job was
abolished. [Footnote 11] But
the Secretary declined to be more specific. He responded to several questions
by invoking "executive privilege." [Footnote 12]
At a news
conference on January 31, 1973, the President was asked about Mr. Seamans' testimony. Mr. Nixon took the opportunity to
assume personal responsibility for Fitzgerald's dismissal:
"I
was totally aware that Mr. Fitzgerald would be fired or discharged or asked to
resign. I approved it and Mr. Seamans must have been
talking to someone who had discussed the matter with me. No, this was not a
case of some person down the line deciding he should go. It was a decision that
was submitted to me. I made it, and I stick by it. [Footnote 13]"
A day
later, however, the White House press office issued a retraction of the
President's statement. According to a press spokesman, the President had
confused Fitzgerald with another former executive employee. On behalf of the
President, the spokesman asserted that Mr. Nixon had not had "put before
him the decision regarding Mr. Fitzgerald." [Footnote 14]
After
hearing over 4,000 pages of testimony, the Chief Examiner for the Civil Service
Commission issued his decision [457 U. S. 738] in the
Fitzgerald case on September 18, 1973. Decision on
the Appeal of A. Ernest Fitzgerald, as reprinted in App. 60a.
The Examiner held that Fitzgerald's dismissal had offended applicable civil
service regulations. Id. at 86a-87a.
[Footnote 15] The
Examiner based this conclusion on a finding that the departmental
reorganization in which Fitzgerald lost his job, though purportedly implemented
as an economy measure, was in fact motivated by "reasons purely personal
to" respondent. Id. at 86a. As
this was an impermissible basis for a reduction in force, [Footnote 16] the
Examiner recommended Fitzgerald's reappointment to his old position or to a job
of comparable authority. [Footnote 17]
[457 U. S. 739] The
Examiner, however, explicitly distinguished this narrow conclusion from a
suggested finding that Fitzgerald had suffered retaliation for his testimony to
Congress. As found by the Commission, "the evidence of record does not
support [Fitzgerald's] allegation that his position was abolished and that he
was separated . . . in retaliation for his having revealed the C-5A cost
overrun in testimony before the Proxmire Committee on
November 13, 1968." Id. at 81a.
Following
the Commission's decision, Fitzgerald filed a suit for damages in the United
States District Court. In it, he raised essentially the same claims presented
to the Civil Service Commission. [Footnote 18] As
defendants he named eight officials of the Defense Department, White House aide
Alexander Butterfield, and "one or More"
unnamed "White House Aides" styled only as "John Does."
The
District Court dismissed the action under the District of Columbia's 3-year
statute of limitations, Fitzgerald v. Seamans,384 F.Supp.
688 (DC 1974), and the Court of Appeals affirmed as to all but one defendant,
White House aide Alexander Butterfield, Fitzgerald v. Seamans, 180 U.S.App.D.C.
75, 553 F.2d 220 (1977). The Court of Appeals reasoned
that Fitzgerald had no reason to suspect White House involvement in his
dismissal, at least until 1973. In that year, reasonable grounds for suspicion
had arisen, most notably through publication of the internal White House
memorandum in which Butterfield had recommended that Fitzgerald at least should
be made to "bleed for a while" before being offered another job in
the administration. Id. at 80, 84, 553 F.2d
at 225, 229. Holding that concealment of illegal activity [457 U. S. 740] would toll the statute of
limitations, the Court of Appeals remanded the action against Butterfield for
further proceedings in the District Court.
Following
the remand and extensive discovery thereafter, Fitzgerald filed a second
amended complaint in the District Court on July 5, 1978. It was in this amended
complaint -- more than eight years after he had complained of his discharge to
the Civil Service Commission -- that Fitzgerald first named the petitioner
Nixon as a party defendant. [Footnote 19] Also included as defendants were White House aide Bryce Harlow and
other officials of the Nixon administration. Additional discovery
ensued. By March, 1980, only three defendants remained: the petitioner Richard
Nixon and White House aides Harlow and Butterfield. Denying a motion for
summary judgment, the District Court ruled that the action must proceed to
trial. Its order of March 26 held that Fitzgerald had stated triable causes of
action under two federal statutes and the First Amendment to the Constitution.
[Footnote 20] The
court also [457 U. S. 741] ruled
that petitioner was not entitled to claim absolute Presidential immunity.
Petitioner
took a collateral appeal of the immunity decision to the Court of Appeals for
the District of Columbia Circuit. The Court of Appeals dismissed summarily. It
apparently did so on the ground that its recent
decision in Halpern v. Kissinger, 196 U.S.App.D.C.
285, 606 F.2d 1192 (1979), aff'd in pertinent part by an equally
divided Court, 452 U. S. 713 (1981), had rejected this
claimed immunity defense.
As this
Court has not ruled on the scope of immunity available to a President of the
United States, we granted certiorari to decide this important issue. 452 U.S. 959 (1981).
* * *
IV
Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts. [Footnote 27]
[457 U. S. 749] Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story's analysis remains persuasive:
"There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability."
3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).
A
The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of [457 U. S. 750] the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law—it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; [Footnote 28] the conduct of foreign affairs— a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret [Footnote 29]" and management of the Executive Branch—a task for which
"imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties.” [Footnote 30]
In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E.g., Butz v. Economou, 438 U. S. 478 (1978); Scheuer v. Rhodes, 416 U. S. 232 (1974). We find these cases to be inapposite. The President's unique status under the Constitution distinguishes him from other executive officials. [Footnote 31]
[457 U. S. 751] Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges—[457 U. S. 752] for whom absolute immunity now is established— a President must concern himself with matters likely to "arouse the most intense feelings." Pierson v. Ray, 386 U.S. at 386 U. S. 554. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office. Ferri v. Ackerman, 444 U. S. 193, 444 U. S. 203 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. [Footnote 32] Nor can the sheer prominence of the President's [457 U. S. 753] office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. [Footnote 33] Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.
B
Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint. [Footnote 34] For example, while courts generally have looked to the common law to determine the scope of an official's evidentiary privilege, [Footnote 35] we have recognized that the Presidential privilege is "rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S. at 418 U. S. 708. It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction
[457 U. S. 754] over the President of the United States. See, e.g., United States v. Nixon, supra; United States v. Burr, 25 F.Cas. 187, 191, 196 (No. 14,694) (CC Va. 1807); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). [Footnote 36] But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U. S. 425, 433 U. S. 443 (1977); United States v. Nixon, supra, at 418 U. S. 703-713. When judicial action is needed to serve broad public interests -- as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra -- the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not. [Footnote 37]
C
In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S. at438 U. S. 508-517; cf. Imbler v. Pachtman, 424 U.S. at 424 U. S. 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e.g., Spalding v. Vilas, 161 U.S. at 161 U. S. 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U. S. 564, 360 U. S. 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable . . ."); [457 U. S. 756] Stump v. Sparkman, 435 U.S. at 435 U. S. 363, and n. 12 (judicial privilege applies even to acts occurring outside "the normal attributes of a judicial proceeding"). In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.
Under the Constitution and laws of the United States, the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases, it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress -- a violation of 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President's motives could not be avoided under the kind of "functional" theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.
Here, respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of "such cause as will promote the efficiency of the service.'" Brief for Respondent 39, citing 5 U.S.C. § 7512(a). Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.
This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect. [457 U. S. 757]
It clearly is within the President's constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. See 10 U.S.C. § 8012(b). Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner's alleged wrongful acts lay well within the outer perimeter of his authority.
V
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. [Footnote 38] There remains the constitutional remedy of impeachment. [Footnote 39] In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. [Footnote 40] Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.
[457 U. S. 758] The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." [Footnote 41] For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.
VI
For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.
So ordered.
FOOTNOTES
[Footnote 1] See Economics of Military
Procurement: Hearings before the Subcommittee on Economy in Government of the
Joint Economic Committee, 90th Cong., 2d Sess., pt. I, pp.199-201 (1968-1969). It is not disputed that officials
in the Department of Defense were both embarrassed and angered by Fitzgerald's
testimony. Within less than two months of respondent's congressional
appearance, staff had prepared a memorandum for the outgoing Secretary of the
Air Force, Harold Brown, listing three ways in which Fitzgerald might be
removed from his position. See App. 209a-211a (memorandum of
John Lang to Harold Brown, Jan. 6, 1969). Among these was a "reduction in
force" -- the means by which Fitzgerald ultimately was removed by Brown's
successor in office under the new Nixon administration. The reduction in force
was announced publicly on November 4, 1969, and Fitzgerald accordingly was
separated from the Air Force upon the elimination of his job on January 5,
1970.
[Footnote 2] See The Dismissal of A. Ernest
Fitzgerald by the Department of Defense: Hearings before the Subcommittee on
Economy in Government of the Joint Economic Committee, 91st Cong., 1st Sess.
(1969). Some 60 Members of Congress also signed a letter to the President
protesting the "firing of this dedicated public servant" as a
"punitive action." Id. at 115-116.
[Footnote 3] A briefing memorandum on the Fitzgerald matter
had been prepared by White House staff in anticipation of a possible inquiry at
the forthcoming press conference. Authored by aide Patrick Buchanan, it
advanced the view that the Air Force was "firing . . . a good public
servant." App. 269a (memorandum of Patrick Buchanan to
Richard Nixon, Dec. 5, 1969). The memorandum suggested that the
President order Fitzgerald's retention by the Defense Department.
[Footnote 4] Id. at 228a.
[Footnote 5] See id. at
109a-112a (deposition of H.R. Haldeman); id. at 137a-141a (deposition of petitioner Richard Nixon). Haldeman's
deposed testimony was based on his handwritten notes of December 12,
1969. Id. at 275a.
[Footnote 6] See id. at
126a (deposition of Robert Mayo); id. at
141a (deposition of Richard Nixon).
[Footnote 7] Both Mayo and his deputy, James Schlesinger,
appear to have resisted at least partly due to a suspicion that Fitzgerald
lacked institutional loyalty to executive policies and that he spoke too freely
in communications with friends on Capitol Hill. Both also stated that
high-level positions were presently unavailable within the Bureau of the
Budget. See id. at 126a (deposition
of Robert Mayo); id. at 146a-147a
(deposition of James Schlesinger).
[Footnote 8] Quoted in Decision on the Appeal of A.
Ernest Fitzgerald (Sept. 18, 1973) (CSC Decision), reprinted in
App. 60a, 84a. (Page citations to the CSC Decision refer to
the cited page in the Joint Appendix.)
[Footnote 9] Id. at 85a.
The memorandum added that "[w]e owe "first choice on
Fitzgerald" to [Senator] Proxmire and others who
tried so hard to make him a hero [for exposing the cost overruns].'"
Suspicion of Fitzgerald's assumed loyalty toward Senator Proxmire
was widely shared in the White House and in the Defense Department. According
to the CSC Decision, supra:
"While Mr. Fitzgerald has denied
that he was 'Senator Proxmier's [sic] boy in
the Air Force,' and he may honestly believe it, we find this statement
difficult to accept. It is evident that the top officials in the Air Force,
without specifically saying so, considered him to be just that. . . . We also
note that, upon leaving the Air Force, Mr. Fitzgerald was employed as a
consultant by the Proxmire Committee, and that
Senator Proxmire appeared at the Commission hearing
as a character witness for [Fitzgerald]." App. 83a.
[Footnote 10] Id. at 61a.
[Footnote 11] See id. at
83a-84a.
[Footnote 12] See ibid.
[Footnote 13] Id. at 185a.
A few hours after the press conference, Mr. Nixon repeated privately to
Presidential aide Charles Colson that he had ordered Fitzgerald's firing. Id. at
214a-215a (recorded conversation of Jan. 31, 1973).
[Footnote 14] Id. at 196a (transcription of statement of White House press secretary Ronald Ziegler, Feb. 1, 1973). In a conversation with aide John Ehrlichman, following his conversation with Charles Colson, see n
13, supra, the President again had claimed responsibility for Fitzgerald's dismissal. When Ehrlichman corrected him on several details, however, the President concluded that he was "thinking of another case." Id. at 21& (recorded conversation of Jan. 31, 1973). See id. at 220a. It was after this conversation that the retraction was ordered.[Footnote 15]
Fitzgerald's position in the Air Force was in the "excepted service,"
and therefore not covered by civil service rules and regulations for the
competitive service. Fitzgerald v. Hampton, 152
U.S.App.D.C. 1, 4, 467 F.2d 755, 758 (1972); see
CSC Decision, App. 63a-64a. In Hampton, however, the
court held that Fitzgerald's employment nonetheless was under "legislative
protection," since he was a "preference eligible" veteran
entitled to various statutory protections under the Veterans' Preference
Act. See 152 U.S.App.D.C.
at 4-14, 467 F.2d at 758-768. Among these were the
benefits of the reduction-in-force procedures established by civil service
regulation. See id. at 4, 467 F.2d at
758.
[Footnote 16]
The Examiner found that Fitzgerald in fact was dismissed because of his
superiors' dissatisfaction with his job performance. App.
86a-87a. Their attitude was evidenced by "statements that he was
not a team player' and `not on the Air Force team.'" Id. at 83a. Without deciding whether this would have
been an adequate basis for an "adverse action" against Fitzgerald as
an "inadequate or unsatisfactory employee," id. at 86a, the
Examiner held that the Commission's adverse action procedures, current version
codified at 5 CFR pt. 752 (1982), implicitly forbade the Air Force to employ a
"reduction in force" as a means of dismissing respondent for reasons
"personal to" him. App. 87a.
[Footnote 17]
The Commission also ordered that Fitzgerald should receive backpay. Id. at 87a-88a. Following the Commission's
order, respondent was offered a new position with the Defense Department, but
not one that he regarded as equivalent to his former employment. Fitzgerald
accordingly filed an enforcement action in the District Court. This litigation
ultimately culminated in a settlement agreement. Under its terms, the United
States Air Force agreed to reassign Fitzgerald to his former position as
Management Systems Deputy to the Assistant Secretary of the Air Force,
effective June 21, 1982. SeeSettlement Agreement in Fitzgerald v. Hampton et al., Civ.
No. 71486 (DC June 15, 1982).
[Footnote 18]
The complaint alleged a continuing conspiracy to deprive him of his job, to
deny him reemployment, and to besmirch his reputation. Fitzgerald alleged that
the conspiracy had continued through the Commission hearings and remained in
existence at the initiation of the lawsuit. See Fitzgerald v. Seamans, 384 F.Supp.
688, 690-692 (DC 1974).
[Footnote 27]
In the present case, we therefore are presented only with "implied"
causes of action, and we need not address directly the immunity question as it
would arise if Congress expressly had created a damages action against the
President of the United States. This approach accords with this Court's settled
policy of avoiding unnecessary decision of constitutional issues. Reviewing
this case under the "collateral order" doctrine, see supra at 457 U. S. 742, we
assume for purposes of this opinion that private causes of action may be
inferred both under the First Amendment and the two statutes on which
respondent relies. But it does not follow that we must -- in considering a Bivens (Bivens v. Six
Unknown Fed. Narcotics Agents,403 U. S. 388 (1971))
remedy or interpreting a statute in light of the immunity doctrine --
assume that the cause of action runs against the President of the United
States. Cf. Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 376 (1951)
(construing 1983 in light of the immunity doctrine, the Court could not accept
"that Congress . . . would impinge on a tradition [of legislative
immunity] so well grounded in history and reason by covert inclusion in the
general language before us," and therefore would not address issues that
would arise if Congress had undertaken to deprive state legislators of absolute
immunity). Consequently, our holding today need only be that the President is
absolutely immune from civil damages liability for his official acts in the
absence of explicit affirmative action by Congress. We decide only this
constitutional issue, which is necessary to disposition of the case before us.
[Footnote 28]
U.S.Const., Art. II, § 3.
[Footnote 29]
Chicago & Southern Air Lines, Inc. v. Waterman S.S.
Corp., 333 U. S. 103, 333 U. S. 111 (1948).
[Footnote 30]
Myers v. United States, 272 U. S. 52, 272 U. S. 134-135
(1926).
[Footnote 31]
Noting that the Speech and Debate Clause provides a textual basis for
congressional immunity, respondent argues that the Framers must be assumed to
have rejected any similar grant of executive immunity. This argument is
unpersuasive. First, a specific textual basis has not been considered a
prerequisite to the recognition of immunity. No provision expressly confers
judicial immunity. Yet the immunity of judges is well settled. See, e.g., 80 U. S. Fisher, 13
Wall. 335 (1872);Stump v. Sparkman, 435 U. S. 349 (1978).
Second, this Court already has established that absolute immunity may be
extended to certain officials of the Executive Branch. Butz
v. Economou, 438 U.S. at 438 U. S. 511-512; see
Imbler v. Pachtman, 424 U. S. 409 (1976)
(extending immunity to prosecutorial officials within the Executive Branch).
Third, there is historical evidence from which it may be inferred that the
Framers assumed the President's immunity from damages liability. At the
Constitutional Convention several delegates expressed concern that subjecting
the President even to impeachment would impair his capacity to perform his
duties of office. See 2 M. Farrand, Records of the Federal
Convention of 1787, p. 64 (1911) (remarks of Gouverneur
Morris); id. at 66 (remarks of
Charles Pinckney). The delegates, of course, did agree to an Impeachment
Clause. But nothing in their debates suggests an expectation that the President
would be subjected to the distraction of suits by disappointed private
citizens. And Senator Maclay has recorded the views
of Senator Ellsworth and Vice President John Adams -- both delegates to the
Convention -- that
[Footnote 32]
Among the most persuasive reasons supporting official immunity is the prospect
that damages liability may render an official unduly cautious in the discharge
of his official duties. As Judge Learned Hand wrote in Gregoire
v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339
U.S. 949 (1950),
[Footnote 33]
These dangers are significant even though there is no
historical record of numerous suits against the President, since a right to sue
federal officials for damages for constitutional violations was not even
recognized until Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971).
[Footnote 34]
This tradition can be traced far back into our constitutional history. See, e.g., 71 U. S. Johnson, 4
Wall. 475, 71 U. S. 501(1866)
("[W]e are fully satisfied that this court has no jurisdiction of a bill
to enjoin the President in the performance of his official duties, and that no
such bill ought to be received by us"); Kendall v. United States, 12
Pet. 524, 37 U. S. 610 (1838)
("The executive power is vested in a President; and as far as his powers
are derived from the constitution, he is beyond the reach of any other
department, except in the mode prescribed by the constitution through the
impeaching power").
[Footnote 35]
See United States v. Reynolds, 345 U. S. 1, 345 U. S. 6-7
(1953) (Secretary of the Air Force); Carl Zeiss Stiftung
v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 323-324 (DC 1966), aff'd
sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 128 U.S.App.D.C.
10, 384 F.2d 979,cert. denied, 389
U.S. 952 (1967) (Department of Justice officials).
[Footnote 36]
Although the President was not a party, the Court enjoined the Secretary of
Commerce from executing a direct Presidential order. See 343
U.S. at 343 U. S. 683.
[Footnote 37]
The Court has recognized before that there is a lesser public interest in
actions for civil damages than, for example, in criminal prosecutions. See
United States v. Gillock, 445 U. S. 360, 445 U. S. 371-373
(1980); cf. United State v. Nixon, 418 U.S. at 418 U. S. 711-712,
and n.19 (basing holding on special importance of evidence in a criminal trial
and distinguishing civil actions as raising different questions not presented
for decision). It never has been denied that absolute immunity may impose a
regrettable cost on individuals whose rights have been violated. But, contrary
to the suggestion of JUSTICE WHITE's dissent, it is not true that our
jurisprudence ordinarily supplies a remedy in civil damages for every legal
wrong. The dissent's objections on this ground would weigh equally against
absolute immunity for any official. Yet the dissent makes no attack on the
absolute immunity recognized for judges and prosecutors.
[Footnote 38]
The presence of alternative remedies has played an important role in our
previous decisions in the area of official immunity. E.g., Imbler v. Pactman, 424
U.S. at 424 U. S. 428-429
("We emphasize that the immunity of prosecutors from liability in suits
under § 1983 does not leave the public powerless to deter misconduct or to
punish that which occurs").
[Footnote 39]
The same remedy plays a central role with respect to the misconduct of federal
judges, who also possess absolute immunity. See Kaufman,
Chilling Judicial Independence, 88 Yale L.J. 681, 690-706 (1979). Congressmen
may be removed from office by a vote of their colleagues. U.S.Const.,
Art. I, § 5, cl. 2.
[Footnote 40]
Prior to petitioner Nixon's resignation from office, the House Judiciary Committee
had convened impeachment hearings.See
generally Report of the Committee on the Judiciary of the House of
Representatives: Impeachment of Richard M. Nixon, President of the United
States, H.R.Rep. No. 93-1305
(1974).
[Footnote 41]
The dissenting opinions argue that our decision places the President
"above the law." This contention is rhetorically chilling, but wholly
unjustified. The remedy of impeachment demonstrates that the President remains
accountable under law for his misdeeds in office. This case involves only a
damages remedy. Although the President is not liable in civil damages for
official misbehavior, that does not lift him "above" the law. The
dissents do not suggest that a judge is "above" the law when he
enters a judgment for which he cannot be held answerable in civil damages; or a
prosecutor is above the law when he files an indictment; or a Congressman is
above the law when he engages in legislative speech or debate. It is simply
error to characterize an official as "above the law" because a
particular remedy is not available against him.