The Supreme Court decision granting Trump presidential immunity from prosecution sets an astounding precedent for executive abuse of power that goes well beyond the seizure of power already planned for by Project 2025.
It is tempting to view this ruling as one borne of our distinctly authoritarian age – a reasoning brought to flower in the Trumpian hothouse in which the entire American right currently resides. But Trump v. United States draws on a deeper, older autocratic strain in American political culture, one that reaches back to Hamilton’s aggressively monarchical proposal at the Constitutional Convention of 1787 and the slightly tamed versions he put forth in the Federalist Papers. This radically expansionist view of presidential power was later revived among chief advisors in the presidential administrations of Richard Nixon, Ronald Reagan, and George W. Bush before defining Trump’s notorious approach to executive authority.
The logic of Roberts’ opinion is summed up in his statement that “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive,” and that thus may not be prosecuted for exercising his core constitutional powers.” This Hamiltonian view, put forth in Federalist 68, 70, and 72, echoes prior rulings of the Roberts Court that have leaned consistently toward more a more capacious view of executive power.
Dick Cheney, a former Nixon Administration official and Gerald Ford’s Chief of Staff, who was long angered by what he saw as a usurpation of independent executive power when his first boss was forced to resign because of crimes associated with Watergate, along with David Addington, a staff lawyer in the Reagan White House, his colleague Samuel Alito, and their boss, Reagan’s second attorney general, Edwin Meese, began promoting a unique interpretation of Alexander Hamilton’s assertions about the role of the executive in Federalist 70. They argued that the executive was meant to be the dominant branch of government, that it was designed to function autonomously from the other branches and that the vesting clause of Article II of the Constitution gave the president sole authority over all aspects of it.
George H.W. Bush didn’t embrace this expansive definition of presidential power but his son, George W. Bush emphatically did. Bush authorized the illegal wiretapping of phones by the National Security Agency, suspended habeas corpus for both U.S. and foreign citizens and forcibly abducted terrorism suspects and brought them to a third country for aggressive interrogation and torture, justifying these actions with what was now known as the “unitary executive theory.”
John Roberts, Brett Kavanaugh, and Amy Coney Barrett, all of whom were all part of the legal team that assisted George W. Bush in Bush v Gore, along with Alito and Clarence Thomas, have consistently leaned toward a Hamiltonian vision of unbridled executive power.
At the Constitutional Convention of 1787, Hamilton gave a speech lasting six hours. Along with the argument that only men of leisure should rule and that the poor were too unruly to ever be trusted with power, he concretely proposed an elective monarchy – an executive with complete veto power over all laws, and one who would serve for life. As Connecticut delegate William Samuel Johnson put it, Hamilton’s proposal was “praised by every gentlemen” but supported by none. The wealthy elites at the Convention may have shared Hamilton’s views of the human condition, but they knew they could never gain support in the states among citizens who had just fought a war in the name of republican principles against a powerful monarchy.
More than two centuries later, the old authoritarian seems to have finally gotten his wish. “The relationship between the President and the people he serves has shifted irrevocably,” said Justice Sotomayor in her dissent. “In every use of official power, the President is now a king above the law.”
