The Law: Can You Sue the White House? Opening the Door for Separation of Powers Immunity in Cheney v. District Court

There is an old saying, "You can't sue city hall." The reference is that the executive is immune from lawsuits, so don't bother with litigation. It will just be a waste of time and resources. Cynics have interpreted executive immunity as an open invitation to secrecy, corruption, and abuse of power. By making executive branch officials immune from court proceedings, critics argue that the Executive becomes above the law (see, e.g., Berger 1974). Over the years, though, legislative bodies have passed numerous laws designed to promote open government and to hold executive officials accountable to the other branches of government and to their constituents. These laws reach all the way to the highest level of government in American society: the White House. (1) Nevertheless, just because Congress wants to hold the president accountable does not necessarily mean that you can take the White House to court. Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address. (2) So when exactly can you sue the president? In the last three decades, the task of answering this question has ultimately fallen on the United States Supreme Court. Beginning with the rejection of President Richard Nixon's claim of executive privilege to prevent discovery in a criminal proceeding, the Supreme Court has offered some broad parameters for holding the president in check while at the same time preserving the balance between the three branches of the federal government. (3) This year, however, the high court was asked to settle a less clear-cut controversy: can federal courts compel the president or the vice president to disclose documents through discovery to private litigants without violating the separation of powers doctrine? While the Supreme Court failed to provide a definitive answer in Cheney v. District Court, it did indicate that presidents and vice presidents, while not above the law, are certainly entitled to greater deference than anyone else in American society. It also opened the door for executive immunity on the grounds of the separation of powers doctrine. Holding government officials accountable is a vital element of democracy. So, too, is allowing each branch of government to perform its official duties without unnecessary or inappropriate interference from the other branches or the public. In Cheney v. District Court, the Supreme Court hinted where, perhaps, the line between executive accountability and presidential prerogatives might be drawn in legal proceedings against the nation's only two elected executive branch officials: the president and the vice president. This article begins with an overview of the parameters that the Supreme Court has established regarding executive privilege and presidential immunity. (4) The article then proceeds to a discussion of how the Supreme Court recently addressed the current administration's efforts to avoid civil action against the vice president by asserting executive immunity based on the separation of powers doctrine. The article concludes with a brief discussion of the implications of the Court's ruling in Cheney v. District Court. Defining the Parameters of Executive Immunity In 1974, a unanimous Supreme Court recognized that presidents are entitled to executive privilege in certain instances that would shield the executive branch from the demands of the legislative and judicial branches of government. In the same case, however, the Court held that presidents could not escape the due process requirements of a criminal proceeding by invoking executive privilege, unless perhaps state secrets were at risk. …