| Harlow v. Fitzgerald
(No. 80-945)
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ Brennan ] | Concurrence
[ Brennan ] | Concurrence
[ Rehnquist ] | Dissent
[ Burger ] |
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Harlow v. Fitzgerald
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CHIEF JUSTICE BURGER, dissenting.
The Court today decides in Nixon v. Fitzgerald, ante p. 457 U.S. 731"]731, what has been taken for granted for 190 years, that it is implicit in the Constitution that a President of the United States has absolute immunity from civil suits arising out of official acts as Chief Executive. I agree fully that absolute immunity for official acts of the President is, like executive privilege, "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." 731, what has been taken for granted for 190 years, that it is implicit in the Constitution that a President of the United States has absolute immunity from civil suits arising out of official acts as Chief Executive. I agree fully that absolute immunity for official acts of the President is, like executive privilege, "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S. 683, 708 (1974). [n1]
In this case, the Court decides that senior aides of the President do not have derivative immunity from the President. I am at a loss, however, to reconcile this conclusion with our holding in Gravel v. United States, 408 U.S. 606"]408 U.S. 606 (1972). The Court reads 408 U.S. 606 (1972). The Court reads Butz v. Economou, 438 U.S. 478 (1978), as resolving that question; I do not. Butz is clearly distinguishable. [n2] [p823]
In Gravel, we held that it is implicit in the Constitution that aides of Members of Congress have absolute immunity for acts performed for Members in relation to their legislative function. We viewed the aides' immunity as deriving from the Speech or Debate Clause, which provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." Art. I, § 6, cl. 1 (emphasis added). Read literally, the Clause would, of course, limit absolute immunity only to the Member and only to speech and debate within the Chamber. But we have read much more into this plain language. The Clause says nothing about "legislative acts" outside the Chambers, but we concluded that the Constitution grants absolute immunity for legislative acts not only "in either House" but in committees and conferences and in reports on legislative activities.
Nor does the Clause mention immunity for congressional aides. Yet, going far beyond any words found in the Constitution itself, we held that a Member's aides who implement policies and decisions of the Member are entitled to the same absolute immunity as a Member. It is hardly an overstatement to say that we thus avoided a "literalistic approach," Gravel, supra, at 617, and instead looked to the structure of the Constitution and the evolution of the function of the Legislative Branch. In short, we drew this immunity for legislative aides from a functional analysis of the legislative process in the context of the Constitution taken as a whole and in light of 20th-century realities. Neither Presidents nor Members of Congress can, as they once did, perform all their constitutional duties personally. [n3] [p824]
We very properly recognized in Gravel that the central purpose of a Member's absolute immunity would be "diminished and frustrated" if the legislative aides were not also protected by the same broad immunity. Speaking for the Court in Gravel, JUSTICE WHITE agreed with the Court of Appeals that
it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that, if they are not so recognized, the central role of the Speech or Debate Clause -- to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary . . . -- will inevitably be diminished and frustrated.
408 U.S. at 616-617 (emphasis added). I joined in that analysis and continue to agree with it, for without absolute immunity for these "elbow aides," who are indeed "alter egos," a Member could not effectively discharge all of the assigned constitutional functions of a modern legislator.
The Court has made this reality a matter of our constitutional jurisprudence. How can we conceivably hold that a President of the United States, who represents a vastly larger constituency than does any Member of Congress, should not have "alter egos" with comparable immunity? To perform the constitutional duties assigned to the Executive would be "literally impossible, in view of the complexities of the modern [Executive] process, . . . without the help of [p825] aides and assistants." [n4] Id. at 616. These words reflect the precise analysis of Gravel, and this analysis applies with at least as much force to a President. The primary layer of senior aides of a President -- like a Senator's "alter egos" -- are literally at a President's elbow, with offices a few feet or at most a few hundred feet from his own desk. The President, like a Member of Congress, may see those personal aides many times in one day. They are indeed the President's "arms" and "fingers" to aid in performing his constitutional duty to see "that the laws [are] faithfully executed." Like a Member of Congress, but on a vastly greater scale, the President cannot personally implement a fraction of his own policies and day-to-day decisions. [n5]
For some inexplicable reason, the Court declines to recognize the realities in the workings of the Office of a President, despite the Court's cogent recognition in Gravel concerning the realities of the workings of 20th-century Members of Congress. Absent equal protection for a President's aides, how will Presidents be free from the risks of "intimidation . . . by [Congress] and accountability before a possibly hostile [p826] judiciary?" Gravel, 408 U.S. at 617. Under today's holding in this case, the functioning of the Presidency will inevitably be "diminished and frustrated." Ibid.
Precisely the same public policy considerations on which the Court now relies in Nixon v. Fitzgerald, and that we relied on only recently in Gravel, are fully applicable to senior Presidential aides. The Court's opinion in Nixon v. Fitzgerald correctly points out that, if a President were subject to suit, awareness of personal vulnerability to suit
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.
Ante at 753. This same negative incentive will permeate the inner workings of the Office of the President if the Chief Executive's "alter egos" are not protected derivatively from the immunity of the President. In addition, exposure to civil liability for official acts will result in constant judicial questioning, through judicial proceedings and pretrial discovery, into the inner workings of the Presidential Office beyond that necessary to maintain the traditional checks and balances of our constitutional structure. [n6]
I challenge the Court and the dissenters in Nixon v. Fitzgerald who join in the instant holding to say that the effectiveness of Presidential aides will not "inevitably be diminished and frustrated," Gravel, supra, at 617, if they must weigh every act and decision in relation to the risks of future [p827] lawsuits. The Gravel Court took note of the burdens on congressional aides: the stress of long hours, heavy responsibilities, constant exposure to harassment of the political arena. Is the Court suggesting the stresses are less for Presidential aides? By construing the Constitution to give only qualified immunity to senior Presidential aides, we give those key "alter egos" only lawsuits, winnable lawsuits perhaps, but lawsuits nonetheless, with stress and effort that will disperse and drain their energies and their purses. [n7]
In this Court, we witness the new filing of as many as 100 cases a week, many utterly frivolous and even bizarre. Yet the defending party in many of these cases may have spent or become liable for thousands of dollars in litigation expense. Hundreds of thousands of other cases are disposed of without reaching this Court. When we see the myriad irresponsible and frivolous cases regularly filed in American courts, the magnitude of the potential risks attending acceptance of public office emerges. Those potential risks inevitably will be a factor in discouraging able men and women from entering public service.
We judges -- collectively -- have held that the common law provides us with absolute immunity for ourselves with respect to judicial acts, however erroneous or ill-advised. See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978). Are the lowest ranking of 27,000 or more judges, thousands of prosecutors, and thousands of congressional aides -- an aggregate [p828] of not less than 75,000 in all -- entitled to greater protection than two senior aides of a President?
Butz v. Economou, 438 U.S. 478 (1978), does not dictate that senior Presidential aides be given only qualified immunity. Butz held only that a Cabinet officer exercising discretion was not entitled to absolute immunity; we need not abandon that holding. A senior Presidential aide works more intimately with the President on a daily basis than does a Cabinet officer, directly implementing Presidential decisions literally from hour to hour.
In his dissent today in Nixon v. Fitzgerald, JUSTICE WHITE states that the "Court now applies the dissenting view in Butz to the Office of the President." Ante at 764. However, this suggests that a President and his Cabinet officers, who serve only "during the pleasure of the President," are on the same plane constitutionally. It wholly fails to distinguish the role of a President or his "elbow aides" from the role of Cabinet officers, who are department heads, rather than "alter egos." It would be in no sense inconsistent to hold that a President's personal aides have greater immunity than Cabinet officers.
The Court's analysis in Gravel demonstrates that the question of derivative immunity does not and should not depend on a person's rank or position in the hierarchy, but on the function performed by the person and the relationship of that person to the superior. Cabinet officers clearly outrank United States Attorneys, yet qualified immunity is accorded the former and absolute immunity the latter; rank is important only to the extent that the rank determines the function to be performed. The function of senior Presidential aides, as the "alter egos" of the President, is an integral, inseparable part of the function of the President. [n8] JUSTICE WHITE [p829] was clearly correct in Gravel, stating that Members of Congress could not
perform their legislative tasks without the help of aides and assistants; [and] that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos. . . .
408 U.S. at 616-617.
By ignoring Gravel and engaging in a wooden application of Butz, the Court significantly undermines the functioning of the Office of the President. Under the Court's opinion in Nixon today, it is clear that Presidential immunity derives from the Constitution as much as congressional immunity comes from that source. Can there rationally be one rule for congressional aides and another for Presidential aides simply because the initial absolute immunity of each derives from different aspects of the Constitution? I find it inexplicable why the Court makes no effort to demonstrate why the Chief Executive of the Nation should not be assured that senior staff aides will have the same protection as the aides of Members of the House and Senate.
1. As I noted in Nixon v. Fitzgerald, Presidential immunity for official acts while in office has never been seriously questioned until very recently. See ante at 758, n. 1 (BURGER, C.J., concurring).
2. If indeed there is an irreconcilable conflict between Gravel and Butz, the Court has an obligation to try to harmonize its holdings -- or at least tender a reasonable explanation. The Court has done neither.
3. A Senator's allotment for staff varies significantly, but can range from as few as 17 to over 70 persons, in addition to committee staff aides who perform important legislative functions for Members. S. DOC. No. 97-19, Pp. 27-106 (1981). House Members have roughly 18 to 26 assistants at any one time, in addition to committee staff aides. H.R. Doc. No. 97-113, pp. 28-174 (1981).
4. In the early years of the Republic, Members of Congress and Presidents performed their duties without staffs of aides and assistants. Washington and Jefferson spent much of their time on their plantations. Congress did not even appropriate funds for a Presidential clerk until 1857. Lincoln opened his own mail, Cleveland answered the phone at the White House, and Wilson regularly typed his own speeches. S. Wayne, The Legislative Presidency 30 (1978). Whatever may have been the situation beginning under Washington, Adams, and Jefferson, we know today that the Presidency functions with a staff that exercises a wide spectrum of authority and discretion and directly assists the President in carrying out constitutional duties.
5. JUSTICE WHITE's dissent in Nixon v. Fitzgerald today expresses great concern that a President may "cause serious injury to any number of citizens even though he knows his conduct violates a statute. . . ." Ante at 764. What the dissent wholly overlooks, however, is the plain fact that the absolute immunity does not protect a President for acts outside the constitutional function of a President.
6. The same remedies for checks on Presidential abuse also will check abuses by the comparatively small group of senior aides who act as "alter egos" of the President. The aides serve at the pleasure of the President, and thus may be removed by the President. Congressional and public scrutiny maintain a constant and pervasive check on abuses, and such aides may be prosecuted criminally. See Nixon, ante at 757. However, a criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in which advocates are subject to no realistic accountability.
7. The Executive Branch may, as a matter of grace, supply some legal assistance. The Department of Justice has a longstanding policy of representing federal officers in civil suits involving conduct performed within the scope of their employment. In addition, the Department provides for retention of private legal counsel when necessary. See Senate Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Lawsuits, 95th Cong., 2d Sess. (Comm. Print 1978). The Congress frequently pays the expenses of defending its Members even as to acts wholly outside the legislative function.
8. This Court had no trouble reconciling Gravel with Kilbourn v. Thompson, 103 U.S. 168 (1881). In Kilbourn, the Sergeant-at-Arms of the House of Representatives was held not to share the absolute immunity enjoyed by the Members of Congress who ordered that officer to act.
