“If Congress passes a law saying a president is not immune from crimes committed while in office, could the Supreme Court rule that the law is unconstitutional even though the Constitution says nothing about it? Could this hold (assuming this partisan Court follows the law for a change)? Or does this terrible immunity decision make that impossible?”
– Lisa Ruml, Dover, New Jersey
Hello Lisa,
Yes, the current Supreme Court could (and probably would) say that such a law is unconstitutional. While I agree with you that the immunity ruling in Trump v. United States was unfounded, the Supreme Court is nevertheless seen as the decider of constitutional meaning. With that in mind, the ruling goes against your premise that there is nothing in the Constitution about immunity, because the court formulated its decision against the backdrop of “our constitutional structure of separate powers.”
Certainly, there are situations in which Congress can override a Supreme Court ruling by passing a law. If there is a decision on what a law means (as opposed to what the Constitution means), Congress can pass a new law addressing that ruling. For example, then-President Barack Obama signed the Lilly Ledbetter Fair Pay Act of 2009, which overturned a 2007 case decided on statutory (not constitutional) grounds. The late Justice Ruth Bader Ginsburg had noted in her 2007 dissent that “the ball is in Congress” — and Congress acted.
The political reaction to the immunity ruling highlights this reality. The background I laid out above is likely why President Joe Biden’s support for court reform includes a constitutional amendment stating that former presidents are not immune from prosecution, contrary to a regular law that says so. An amendment is of course more difficult to achieve, although it has happened 27 times before — with the approval of two-thirds of the House and Senate, plus three-quarters of the states.
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Another way to overturn the immunity ruling is for the court to do so directly. Absent an unlikely change of heart among the current justices, that would depend on a reconstitution of the court, which could take years to happen, if it ever does. The 2022 Dobbs ruling, which overturned 1973 Roe v. Wade, was the product of a decades-long effort by the conservative legal movement to redesign the courts. Dobbs has also sparked a backlash, but whether it will spark a movement to reshape the Supreme Court remains to be seen. Without a similar movement in response to the statements of this age, we may be stuck with it.
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This article was originally published on MSNBC.com
