Nixon v. Fitzgerald

457 U.S. 731

Case Year: 1982

Case Ruling: 5-4, Reversed and Remanded

Opinion Justice: Powell

FACTS

A. Ernest Fitzgerald was a civilian management analyst for the U.S. Air Force. In November 1968 Fitzgerald testified before a congressional committee chaired by Sen. William Proxmire, D-Wis. Fitzgerald reported that cost overruns for the C-5A transport plane might reach as high as $2 billion. In addition, he spoke about the technical problems the manufacturer had encountered in producing the aircraft. Needless to say, Fitzgerald's testimony was not well received by the Defense Department or military contractors.

Thirteen months later, in January 1970, Fitzgerald was removed from his job on the ground that a department reorganization had made a reduction in staff necessary. Fitzgerald believed he was fired in retaliation for his congressional appearance. The dismissal caused a great deal of concern among members of Congress, and Fitzgerald's story was widely reported in the media.

The question was whether the Nixon administration was trying to get rid of a trouble-making whistleblower. The president told a press conference that he would look into the matter, and there appeared to be some attempt to find Fitzgerald another government position. Those attempts failed, perhaps because of an internal memorandum circulated by presidential aide Alexander Butterfield concluding that "Fitzgerald is no doubt a topnotch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game . . . we should let him bleed, for a while at least."

Denied another government job, Fitzgerald began legal action, first complaining to the Civil Service Commission and then filing a suit for damages. When asked about the Fitzgerald matter, President Nixon responded, "I was totally aware that Mr. Fitzgerald would be fired or discharged or asked to resign. I approved it. . . . No, this was not a case of some person down the line deciding he should go. It was a decision that was submitted to me. I made it and I stick by it." The next day the president's office retracted his statements, explaining that Nixon had confused Fitzgerald with someone else. But, as revealed in the Watergate tapes, Nixon boasted privately that he gave the order to "get rid of that son of a bitch."

Fitzgerald's lawsuit was against a number of federal executive branch officials, including Nixon, who had resigned during the early stages of the lower court proceedings. The former president's lawyers asserted that he should be removed from the suit on the ground of absolute executive immunity from legal actions based on his official conduct as president. The lower courts rejected the absolute immunity claim, and Nixon appealed.

 

JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.

This case now presents the claim that the President of the United States is shielded by absolute immunity from civil damages liability. In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of "public policy" analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.

Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts.

Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. . . .

The President occupies a unique position in the constitutional scheme. Article II, §1, of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law--it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; the conduct of foreign affairs--a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret"; and management of the Executive Branch--a task for which "imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties."

In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. We find these cases to be inapposite. The President's unique status under the Constitution distinguishes him from other executive officials.

Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges--for whom absolute immunity now is established--a President must concern himself with matters likely to "arouse the most intense feelings." Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office. This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. Nor can the sheer prominence of the President's office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. Cognizance of this personal vulnerability 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.

Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint. For example, while courts generally have looked to the common law to determine the scope of an official's evidentiary privilege, we have recognized that the Presidential privilege is "rooted in the separation of powers under the Constitution." United States v. Nixon [1974]. It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. When judicial action is needed to serve broad public interests--as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution--the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.

In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. But the Court also has refused to draw functional lines finer than history and reason would support. 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.

Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress--a violation of 5 U.S.C. §7211 (1976 ed., Supp. IV) and 18 U.S.C §1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President's motives could not be avoided under the kind of "functional" theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.

Here respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of " 'such cause as will promote the efficiency of the service.' " Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.

This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect. It clearly is within the President's constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner's alleged wrongful acts lay well within the outer perimeter of his authority.

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.

The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.

For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.

So ordered.

JUSTICE WHITE, WITH WHOM JUSTICE BRENNAN, JUSTICE MARSHALL, AND JUSTICE BLACKMUN JOIN, DISSENTING.

The four dissenting Members of the Court in Butz v. Economou (1978) argued that all federal officials are entitled to absolute immunity from suit for any action they take in connection with their official duties. That immunity would extend even to actions taken with express knowledge that the conduct was clearly contrary to the controlling statute or clearly violative of the Constitution. Fortunately, the majority of the Court rejected that approach: We held that although public officials perform certain functions that entitle them to absolute immunity, the immunity attaches to particular functions--not to particular offices. Officials performing functions for which immunity is not absolute enjoy qualified immunity; they are liable in damages only if their conduct violated well-established law and if they should have realized that their conduct was illegal.

The Court now applies the dissenting view in Butz to the Office of the President: A President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. . . .

In declaring the President to be absolutely immune from suit for any deliberate and knowing violation of the Constitution or of a federal statute, the Court asserts that the immunity is "rooted in the constitutional tradition of the separation of powers and supported by our history." The decision thus has all the earmarks of a constitutional pronouncement--absolute immunity for the President's office is mandated by the Constitution. Although the Court appears to disclaim this, it is difficult to read the opinion coherently as standing for any narrower proposition: Attempts to subject the President to liability either by Congress through a statutory action or by the courts . . . would violate the separation of powers. Such a generalized absolute immunity cannot be sustained when examined in the traditional manner and in light of the traditional judicial sources. . . .

The functional approach to the separation-of-powers doctrine and the Court's more recent immunity decisions converge on the following principle: The scope of immunity is determined by function, not office. The wholesale claim that the President is entitled to absolute immunity in all of his actions stands on no firmer ground than did the claim that all Presidential communications are entitled to an absolute privilege, which was rejected in favor of a functional analysis, by a unanimous Court in United States v. Nixon (1974). Therefore, whatever may be true of the necessity of such a broad immunity in certain areas of executive responsibility, the only question that must be answered here is whether the dismissal of employees falls within a constitutionally assigned executive function, the performance of which would be substantially impaired by the possibility of a private action for damages. I believe it does not. . . .

Because of the importance of this case, it is appropriate to examine the reasoning of the majority opinion.

The opinion suffers from serious ambiguity even with respect to the most fundamental point: How broad is the immunity granted the President? The opinion suggests that its scope is limited by the fact that under none of the asserted causes of action "has Congress taken express legislative action to subject the President to civil liability for his official acts." We are never told, however, how or why congressional action could make a difference. It is not apparent that any of the propositions relied upon by the majority to immunize the President would not apply equally to such a statutory cause of action; nor does the majority indicate what new principles would operate to undercut those propositions.

. . . While the majority opinion recognizes that "[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States," it bases its conclusion, at least in part, on a suggestion that there is a special jurisprudence of the Presidency.

But in United States v. Nixon (1974), we upheld the power of a Federal District Court to issue a subpoena duces tecumagainst the President. In other cases we have enjoined executive officials from carrying out Presidential directives. See,e.g. , Youngstown Sheet & Tube Co. v. Sawyer (1952). Not until this case has there ever been a suggestion that the mere formalism of the name appearing on the complaint was more important in resolving separation-of-powers problems than the substantive character of the judicial intrusion upon executive functions. . . .

Focusing on the actual arguments the majority offers for its holding of absolute immunity for the President, one finds surprisingly little. As I read the relevant section of the Court's opinion, I find just three contentions from which the majority draws this conclusion. Each of them is little more than a makeweight; together they hardly suffice to justify the wholesale disregard of our traditional approach to immunity questions.

First, the majority informs us that the President occupies a "unique position in the constitutional scheme," including responsibilities for the administration of justice, foreign affairs, and management of the Executive Branch. True as this may be, it says nothing about why a "unique" rule of immunity should apply to the President. . . .

Second, the majority contends that because the President's "visibility" makes him particularly vulnerable to suits for civil damages, a rule of absolute immunity is required. The force of this argument is surely undercut by the majority's admission that "there is no historical record of numerous suits against the President.". . .

Finally, the Court suggests that potential liability "frequently could distract a President from his public duties." Unless one assumes that the President himself makes the countless high-level executive decisions required in the administration of government, this rule will not do much to insulate such decisions from the threat of liability. The logic of the proposition cannot be limited to the President; its extension, however, has been uniformly rejected by this Court. . . . Furthermore, in no instance have we previously held legal accountability in itself to be an unjustifiable cost. The availability of the courts to vindicate constitutional and statutory wrongs has been perceived and protected as one of the virtues of our system of delegated and limited powers. . . .

The majority may be correct in its conclusion that "[a] rule of absolute immunity . . . will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive." Such a rule will, however, leave Mr. Fitzgerald without an adequate remedy for the harms that he may have suffered. More importantly, it will leave future plaintiffs without a remedy, regardless of the substantiality of their claims. The remedies in which the Court finds comfort were never designed to afford relief for individual harms. Rather, they were designed as political safety valves. Politics and history, however, are not the domain of the courts; the courts exist to assure each individual that he, as an individual, has enforceable rights that he may pursue to achieve a peaceful redress of his legitimate grievances.

I find it ironic, as well as tragic, that the Court would so casually discard its own role of assuring "the right of every individual to claim the protection of the laws," Marbury v. Madison, in the name of protecting the principle of separation of powers. Accordingly, I dissent.