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This Essay sketches how Ely's representation-reinforcement theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by private burdens imposed by individual actors. On the other hand, certain litigation efforts to constrain presidential misbehavior can enhance presidential accountability in a different way, by deterring Presidents from (1) "clogging the channels of [political] change" through self-entrenching actions (think election interference) or by (2) failing to represent her constituents en masse through self-dealing actions (think steering government contracts for, or basing foreign policy decisions on, personal financial gain). In general these conclusions support, and in some instances helpfully clarify and strengthen, the Court's current efficacy-based concerns; but the arguments for immunity exceptions are novel and weighty. Overall, in my view, the general Elyan approach and vocabulary offer a useful framework for immunity doctrine that should supplement if not supplant the prevailing approach.

Part I of this Essay briefly canvasses the current doctrinal approach, illustrating how the Court has crafted immunity doctrine out of concern that various forms of civil or criminal process might impair the President's ability to perform her duties effectively. Part II sketches an alternative Elyan accountability based approach to presidential immunity, reevaluates the Court's pro-immunity arguments through this alternative frame, presents the two novel accountability-based reasons to override any erstwhile immunity, and finally sketches options for incorporating the arguments for and exceptions to immunity into doctrine.

My analysis here is admittedly partial; thoroughly considering presidential immunity's full contours would require deeply engaging other textual, historical, and functional considerations-as well as much more space. But I hope this preliminary exploration suitably celebrates both the analytical insights and staying power of Ely's masterful book on the occasion of its fortieth anniversary.


Originally published as Caminker, Evan H. "Democracy, Distrust, and Presidential Immunities." Constitutional Commentary 36, no. 2 (2021): 255-296. All articles published in Constitutional Commentary are distributed with a Creative Commons Noncommercial Attribution license (CC BY-NC 4.0). This means that each author holds the copyright to her or his work, and grants users the rights to: share (copy and/or redistribute the material in any medium or format) or adapt (remix, transform, and/or build upon the material) the article, as long as the original author and source are cited, and the use is for noncommercial purposes. Permission is not needed for these noncommercial uses. Read the summary terms, or the full legal license code. For permission for other uses, or questions about use, please contact the editors.