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The Fearless Executive, Crime, and the Separation of Powers

­­Trump v. United States’s discovery of broad immunity has rendered the presidency more imperial and unaccountable. This Article tackles four questions. First, are the Constitution’s grants of specific and distinct privileges and immunities for federal officials illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on the power of Congress to criminalize the constitutional acts of the President, members of Congress, and the courts? Consider whether a federal judge can be prosecuted for her allegedly corrupt judicial judgment, one meant to satisfy a bribe previously received. Third, even if the Constitution grants immunity for constitutional acts, does it bestow any immunity for statutory acts? The Court held there was at least a presumptive immunity for presidents without pausing to discuss why the Constitution would implicitly immunize a branch’s exercise of statutory authority. Finally, when should we read a generic statute to cover the official acts of constitutional officers? Consider whether federal obstruction statutes should be construed to apply to judges and presidents as they exercise their constitutional powers over trials and prosecutions. As to the first question, the Constitution carefully conveys to each branch a unique and limited set of privileges. It is a mistake to read the Constitution as if it implicitly bestowed further shields. Instead, Congress may choose to bestow additional needful and appropriate safeguards to the three branches. Regarding the second question, Congress can criminalize the following sorts of acts: violations of the separation of powers, corrupt exercises of constitutional authority, and acts that transgress federal statutory law. Hence, a corrupt pardon or a corrupt judicial order can form the basis of a federal crime even though each might seem to be authorized by the Constitution. On the third matter, even if one thought the Constitution immunized certain exercises of constitutional powers, there is little reason to suppose it also immunizes the exercise of statutory powers by constitutional officers. On the final issue, we ought to disfavor reading generic criminal laws as if they apply to exercises of constitutional powers. We should be wary of supposing that Congress sought to police the constitutionally authorized acts of constitutional actors via general prohibitions that principally regulate ordinary persons.

Introduction

Commentators have long asserted that Donald Trump committed crimes in his first term.1 1.See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG].Show More After he left the Oval Office, three prosecutors2 2.Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml.Show More brought four prosecutions against him.3 3.Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment].Show More The New York prosecution relates to the supposed falsification of business records.4 4.New York Indictment, supra note 3, at 1–2.Show More The Florida prosecution, which was dropped after Trump won the 2024 election, alleged that Trump illegally retained and concealed federal records.5 5.Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD].Show More The Georgia prosecution, which is indefinitely paused, and Washington, D.C. prosecution, also dropped after the 2024 election, rested on acts that occurred during Donald Trump’s first term.6 6.Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5.Show More

These prosecutions foregrounded a vital separation of powers question that had yet to receive its due: When, if ever, may an apparently constitutionally authorized act form the actus reus of a criminal prosecution? For example, could the direction of Justice Department officials, conversations with a Vice President, and (supposedly) official tweets give rise to a prosecution and a guilty verdict?7 7.Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024).Show More Could a military order to kill a rival result in jail time (or worse) for an ex-President?8 8.Id. at 2376 (Jackson, J., dissenting).Show More These are profound questions about the nature of our government.

In Trump v. United States, the Supreme Court supplied some answers.9 9.Id. at 2347 (majority opinion).Show More With the entire nation watching, the Court displayed little timidity. It held that the President had absolute immunity from prosecution for certain “core” constitutional actions and at least presumptive immunity for all other official acts, whether constitutional or statutory.10 10.Id.Show More Given the Court’s consistently broad conception of the President’s official acts,11 11.See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“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.”).Show More on display again in Trump,12 12.Trump, 144 S. Ct. at 2329–30.Show More this was a bestowal of a capacious immunity. From the penumbras of Article II, the Court conjured up a vast aegis.

The breadth was intentional, for the Court sought to safeguard what it saw as a besieged presidency. Chief executives were meant to be “energetic,” “vigorous,” “bold,” “unhesitating,” and “fearless[],” said the Court.13 13.Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346.Show More But if their bold actions triggered “routine[]” criminal cases, there would be an unremitting “pall of potential prosecution”14 14.Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)).Show More and beleaguered presidents would not execute their office “fearlessly and fairly.”15 15.Id.Show More The Framers “did not envision such counterproductive burdens on the” executive they wrought.16 16.Id.Show More Given what the Framers sought, the Court would not countenance routine prosecutions that “would dampen the ardor of all but the most resolute.”17 17.Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32).Show More Further, immunity must be decided before trial to cut off “the possibility of an extended [and potentially unwarranted] proceeding,” for otherwise a President would be “unduly cautious.”18 18.Id. (quoting Fitzgerald, 457 U.S. at 752 n.32).Show More Hence within the Constitution, the Court belatedly discovered substantial bulwarks against criminal liability and prosecution.

The Court’s opinion approaches adjudication by adjectives. For older Americans, the plethora of heroic modifiers might recall Captain James T. Kirk, who “boldly” went “where no man has gone before” with the Starship Enterprise.19 19.See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012).Show More For a younger generation, maybe they summon in the mind’s eye a Katniss Everdeen.20 20.See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”).Show More Kirk and Everdeen were bold and energetic. Above all, they were fearless.

Somewhat ironically, the decision’s exaltation of a fearless President provoked great fear among three dissenting Justices21 21.See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”).Show More and, if one reads between the lines, more than a little trepidation in a concurring Justice.22 22.Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)).Show More The decision has had repercussions for the ongoing prosecutions.23 23.For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024).Show More Beyond courtrooms, the decision has provoked alarm,24 24.See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”).Show More especially because immunity might embolden future presidents to act lawlessly.25 25.See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5].Show More

The adulation, the fury, and the fear that Donald Trump evokes often pervert our judgment and “the better angels of our nature.”26 26.Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013).Show More Nonetheless, this is an opportune moment to consider the question of presidential immunity, as it will arise again in the future. Though it might seem as if the Court has said all that needs to be said, occasionally the Court announces a test and makes a course correction, as it recently did in Rahimi.27 27.Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”).Show More Infrequently, it quickly reverses itself.28 28.E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).Show More

As we contemplate these matters, we should consider the other branches. Do their officials also have immunity for their official acts to foster energy, vigor, and boldness? One might wonder whether federal judges have (or should have) criminal immunity for their official acts, say, a judgment alleged to be corrupt. Representatives and Senators might claim official immunity for allegedly crooked discussions with constituents or supposedly corrupt votes on the floor. It might seem obvious that the Court’s opinion applies only to the President. But in the Nixon tapes case, the Court said that all three branches have an evidentiary privilege rooted in the separation of powers.29 29.United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)).Show More If the separation of powers creates prosecutorial immunity for presidents, as the Court signaled in Trump,30 30.Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”).Show More perhaps that immunity extends to the other branches.

In thinking about these questions, the Court focused on “core constitutional powers” versus “official acts,” a distinction that the Constitution never draws and that is elusive.31 31.Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested.Show More Further, it spoke of “immunity” and never properly considered whether the supposed immunity could be overcome or defeased. In particular, the Court failed to address the scope of Congress’s powers, instead choosing to focus on the presidency and its needs. Most tellingly, the Court never cited the Necessary and Proper Clause or any other Article I authority. But in a case about the separation of powers, the scope of congressional powers ought to matter.

A more profitable approach is to consider four questions, each of which considers all three branches. First, are the Constitution’s conspicuous grants of narrow privileges and immunities illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on Congress’s ability to criminalize constitutional acts, by the President or otherwise? By “constitutional acts,” I mean acts that are apparently constitutionally authorized, as opposed to statutorily authorized. Third, should we read the Constitution as granting an implicit immunity for the statutorily authorized acts of constitutional actors? Lastly, when should we read generic criminal law as applying to the official acts of constitutional actors, for example, judges, presidents, and senators?

The Constitution’s text, structure, and early history suggest a different set of conclusions than the ones the Court settled upon. First, save for a guaranteed salary, the presidency has no other privileges or immunities. The other branches likewise have their limited and enumerated privileges and immunities. If there are to be additional safeguards, Congress must create them via the Necessary and Proper Clause.32 32.Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant.Show More Sometimes exceptionally necessary, proper, and indispensable means—like funds, departments, officers, and buildings—are left to the judgment of Congress. That is no less true for official immunity, including presidential immunity from prosecution. Second, any other constitutional protections for the three branches arise from the absence of congressional power to criminalize certain acts. This is not an “immunity”—an exemption from the law—as much as the dearth of legislative power. Just as Congress could not make it a crime for a citizen to vote, it may not make it a crime for a President to veto a bill. And yet even though Congress cannot criminally sanction the mere exercise of a constitutional power, it may criminalize the corrupt or wrongful exercise of powers. The Necessary and Proper Clause, which authorizes Congress to criminalize bribery, treason, and other forms of corruption, also permits Congress to protect the separation of powers.33 33.For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018).Show More For example, a President who issues a pardon to aid an enemy could be prosecuted for treason, or so I argue. Third, despite what the Court says, the Constitution does not confer any immunity for presidential acts authorized by statute. There is no reason to think that the Constitution dictates that, when Congress grants authority to a constitutional actor, criminal immunity must accompany the statutory grant. Fourth, whatever one thinks of the above arguments, there are reasons to reject the notion that in enacting generic criminal laws, Congress meant to criminalize the official acts of constitutional actors, including the President. The Court ignored this basic question of statutory interpretation.

In sum, my framework is one of (1) narrow constitutional protections for constitutional officers, (2) significant congressional power to grant additional privileges or immunities, (3) meaningful legislative power to sanction wrongful constitutional acts, (4) no constitutional immunity for grants of statutory authority, and (5) a reluctance to read generic statutes as if they regulated the official acts of constitutional officers.

Part I briefly discusses and criticizes Trump v. United States. The Court’s treatment was unavoidably rushed. This hasty posture made the majority opinion ill-considered in several respects, failing as it does to grapple with difficult questions of first impression.

Part II considers the Court’s case for an executive immunity from prosecution. The Court’s arguments from the Founding, constitutional structure, and case law are unpersuasive. Indeed, many of these considerations cut against the Court’s discovery of immunity.

Part III argues that presidents have a narrow protection from federal statutes that criminalize uses of the Executive’s constitutional powers. This protection arises because of the absence of legislative power to punish mere uses of executive powers. And yet, Congress retains considerable power to protect the Constitution. Via the Necessary and Proper Clause, Congress can (a) criminalize corrupt exercises of presidential, legislative, and judicial power; (b) penalize executive violations of the separation of powers, and (c) punish the desecration and flouting of congressional laws. Hence, while Congress cannot make it a crime to “grant a pardon,” a law more narrowly targeted at the “grant of corrupt pardons” would be necessary and proper to implement the Constitution.

Part IV considers the question of statutory acts. The Constitution does not provide that when Congress grants authority to a constitutional actor, that conferral comes with implied immunity. To hold that the Constitution dictates that every grant of statutory authority must come freighted with some immunity from prosecution is a bridge too far.

Part V shifts to statutory interpretation, arguing that prosecutors and courts should be loath to read generic criminal statutes as if they applied to constitutional acts. Legislators fashion generally applicable criminal laws with the public in mind, not presidents, members of Congress, and judges. This focus ought to matter in discerning the reach of such laws. Relatedly, it seems unlikely that legislators would impinge upon presidential or judicial action via generic criminal laws because it is doubtful that they would hide an elephant—regulation of a President’s or judge’s official acts—in a mousehole of a generic criminal law.34 34.Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”).Show More Finally, we have good reason to eschew reading such laws as if they applied to constitutional deeds because doing so raises difficult constitutional questions.

Although the Article’s focus is on crime, the conclusions apply to non-penal measures. If I am right that Congress can attach criminal sanctions to a judge’s official, but corrupt, acts, it can impose lesser burdens, like civil fines. The same logic would apply to legislators and presidents.

Several caveats are necessary. This Article is not about Donald Trump. Hence, it will not address whether he committed any crimes. It focuses on constitutional explication, addressing knotty issues that show no signs of going away. Indeed, they have always been with us, lurking in the background. Nor will this Article address whether sitting presidents may be prosecuted.35 35.For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president.Show More As this Article goes to print, the question of temporary immunity for sitting chief executives may become a live issue. Trump’s reascension to the presidency raises the prospect that state prosecutors may attempt to continue their prosecutions. Finally, this Article is but a part of a vital, long overdue conversation,36 36.I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69).Show More one that the Court helped further and one where the Court may yet change its mind. Or so I hope.

  1.  See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG]. ↑
  2.  Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml. ↑
  3.  Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment]. ↑
  4.  New York Indictment, supra note 3, at 1–2. ↑
  5.  Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD]. ↑
  6.  Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5. ↑
  7.  Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024). ↑
  8.  Id. at 2376 (Jackson, J., dissenting). ↑
  9.  Id. at 2347 (majority opinion). ↑
  10.  Id. ↑
  11.  See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“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.”). ↑
  12.  Trump, 144 S. Ct. at 2329–30. ↑
  13.  Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346. ↑
  14.  Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)). ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32). ↑
  18.  Id. (quoting Fitzgerald, 457 U.S. at 752 n.32). ↑
  19.  See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012). ↑
  20.  See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”). ↑
  21.  See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”). ↑
  22.  Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)). ↑
  23.  For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024). ↑
  24.  See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”). ↑
  25.  See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5]. ↑
  26.  Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013). ↑
  27.  Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”). ↑
  28.  E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). ↑
  29.  United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)). ↑
  30.  Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”). ↑
  31.  Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).

    Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.

    Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested. ↑

  32.  Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant. ↑
  33.  For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018). ↑
  34.  Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”). ↑
  35.  For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president. ↑

  36.  I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69). ↑

Medicaid Act Protections for Gender-Affirming Care

Introduction

As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”)1 1.GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients.Show More for transgender Medicaid beneficiaries of all ages.2 2.Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024).Show More Another two states exclude coverage for transgender minor beneficiaries but presumably approve medically necessary treatment for adults.3 3.Id.Show More Coverage policies are unclear or not explicit in another eleven states and four U.S. territories.4 4.Id.Show More In total, at least twelve states5 5.Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id.Show More deny medically necessary GAC based solely on the diagnosis for which beneficiaries seek treatment: gender dysphoria. Yet several states provide coverage to cisgender beneficiaries for the same gender-affirming procedures to treat other diagnoses.6 6.See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males).Show More These exclusions violate the Medicaid Act’s (the “Act”) availability and comparability requirements, which mandate equality of coverage for medically necessary treatments without discrimination on the basis of diagnosis, type of illness, or condition.7 7.42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015).Show More Over the past decade, at least five courts heard challenges to GAC exclusions and held that they violate the Act because GAC is the consensus treatment for gender dysphoria and is medically necessary.8 8.See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC).Show More To the Author’s knowledge, no court has held otherwise during that time. At the time of writing, a petition for a writ of certiorari on the issue is pending before the Supreme Court.9 9.Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024).Show More

Exclusions differ in form between jurisdictions. Some states exclude coverage statutorily, some through agency regulations or guidance, and still others through shadow bans, unpromulgated policies generally known only within state Medicaid medical review offices.10 10.Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022).Show More Regardless of the form, these exclusions violate the Act.11 11.See infra Section III.B.Show More

Two issues are at the heart of these cases. A challenger must show that coverage for the categorically excluded treatment falls under a mandatory service category in the Act or that the state covers the treatment for diagnoses other than gender dysphoria. Upon that showing, the first issue is whether the excluded GAC treatment is medically necessary for the treatment of gender dysphoria. The second is whether the exclusion is a legitimate utilization control procedure.

This Essay proceeds in three Parts. First, it reviews the history of GAC coverage in state Medicaid plans. Second, it describes the availability and comparability jurisprudence requiring coverage of medically necessary care and equality of benefits. Third, it analyzes cases applying that jurisprudence in challenges to GAC exclusions, demonstrating a unanimous trend of finding the exclusions unlawful under the Act. While the Supreme Court is expected to decide only the broader issue of whether GAC bans violate the Equal Protection Clause of the Fourteenth Amendment in its anticipated United States v. Skrmetti opinion,12 12.L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More the Medicaid Act framework and reasoning should be part of that broader consideration, as it demonstrates the arbitrariness of GAC bans regardless of whether transgender people are a suspect class entitled to heightened scrutiny.

  1.  GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients. ↑
  2.  Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care
    ,

    Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024). ↑

  3.  Id. ↑
  4.  Id. ↑
  5.  Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id. ↑
  6.  See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males). ↑
  7.  42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015). ↑
  8.  See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC). ↑
  9.  Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024). ↑
  10.  Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022). ↑
  11.  See infra Section III.B. ↑

  12.  L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024). ↑

Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause

Introduction

Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, prevent access to accurate identification documents, prohibit drag shows, prevent the discussion of queer identities in public schools, and ban queer books.”1 1.Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965, 968 (2024).Show More Perhaps the most harmful and widespread of these laws are those banning trans youth from accessing gender-affirming care.2 2.See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ].Show More Going through puberty is a difficult experience for any adolescent. But for trans youth, the experience can be excruciating. Without access to gender-affirming care, trans youth may face “severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.”3 3.Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021).Show More Thus, “[e]very major medical association and leading world health authority supports health care for transgender people and youth.”4 4.GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T].Show More

Under current law, even if these gender-affirming care bans are found to be unconstitutional, trans youth will have no remedy for the harms they face until the laws are struck down. States enjoy sovereign immunity from most actions seeking monetary relief.5 5.See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996).Show More With sovereign immunity in place, the only remedy available is prospective relief preventing the states from engaging in future unconstitutional conduct.6 6.See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)).Show More Trans youth must therefore bear the costs of puberty, and of reversing the changes that puberty causes, on their own.7 7.Id.Show More

By enacting and enforcing anti-trans measures, however, states have opened the door—and their wallets—for congressional intervention. This Essay argues that, because the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions, the states have invited Congress to exercise its power under the Enforcement Clause to abrogate states’ sovereign immunity. Using this power, Congress may permit trans people to, at a minimum, seek monetary relief for harms caused by unconstitutional bans on gender-affirming care.8 8.See infra Part II.Show More

Legislation under the Enforcement Clause to enforce the rights of trans people would not come without challenges.9 9.Id.Show More For example, the Supreme Court recently heard a challenge to bans on gender-affirming care for minors under the Fourteenth Amendment’s Equal Protection Clause. In United States v. Skrmetti, the Supreme Court will determine whether laws banning transgender youth from accessing gender-affirming care constitute unlawful sex or transgender status discrimination under the Equal Protection Clause.10 10.See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023).Show More Depending on the outcome of Skrmetti, Congress’s power under the Enforcement Clause to enforce the rights of trans people may become much broader and powerful than it is now, or it may become more ambiguous and narrower. No matter the outcome of Skrmetti, however, the wave of anti-trans legislation throughout the nation is sufficient to enact some Enforcement Clause legislation.

Notwithstanding any difficulties Enforcement Clause legislation might face, Congress should seek to enact legislation enforcing the rights of trans people anyway. Enforcement Clause legislation would require the states, rather than trans people, to bear the cost of any constitutional violations. Similarly, Enforcement Clause legislation would deter states from enacting unconstitutional anti-trans legislation by opening the states to financial liability any time they cross the constitutional line.11 11.Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. 1997, 2003–07 (2016) (articulating the role of damages in deterring private actors from committing wrongdoing).Show More And, as a coequal branch of government, Congress should seek to exercise its Enforcement Clause power to participate in the process of defining the rights guaranteed by the Fourteenth Amendment and to preserve the Enforcement Clause power into the future.

The Essay proceeds as follows. Part I examines Congress’s power to abrogate state sovereign immunity under the Fourteenth Amendment’s Enforcement Clause. Part II addresses the potential avenues Congress will have for Enforcement Power legislation after Skrmetti. Part III addresses why Congress should enact legislation abrogating sovereign immunity in response to anti-trans legislation.

  1.  Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev
    .

    965, 968 (2024). ↑

  2.  See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ]. ↑
  3.  Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021). ↑
  4.  GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T]. ↑
  5.  See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996). ↑
  6.  See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)). ↑
  7.  Id. ↑
  8.  See infra Part II. ↑
  9.  Id. ↑
  10.  See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023). ↑

  11.  Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev

    . 1997, 2003–07 (2016) (

    articulating the role of damages in deterring private actors from committing wrongdoing). ↑

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