nixon fitzgerald argued november decided june waning months presidency lyndon johnson respondent management analyst department air force testified congressional subcommittee unexpected technical difficulties concerning development particular airplane january presidency petitioner richard nixon respondent dismissed job departmental reorganization reduction force job eliminated respondent complained civil service commission alleging separation represented unlawful retaliation congressional testimony commission rejected claim concluded respondent dismissal offended applicable regulations motivated reasons purely personal respondent respondent thereafter filed suit damages federal district various defense department officials white house aides allegedly responsible dismissal amended complaint later named petitioner defendant earlier judicial rulings extensive pretrial discovery three defendants involved petitioner two white house aides petitioners harlow fitzgerald post denying defendants motion summary judgment held respondent stated triable causes action two federal statutes first amendment petitioner entitled claim absolute presidential immunity petitioner took collateral appeal immunity decision appeals dismissed summarily held jurisdiction determine immunity question pp case appeals purposes authorizes review ases courts appeals appeals dismissed appeal lack jurisdiction however petitioner appeal appeals falls within collateral order doctrine cohen beneficial industrial loan raising serious unsettled question law although appeals previously ruled another case president entitled absolute immunity never held pp controversy mooted agreement liquidate damages entered parties petition certiorari filed respondent entered opposition terms agreement petitioner paid respondent respondent agreed accept liquidated damages ruled petitioner entitled absolute immunity payments made decision upheld petitioner immunity claim limited agreement left parties considerable financial stake resolution question presented cf havens realty coleman pp petitioner former president entitled absolute immunity damages liability predicated official acts pp although blanket recognition absolute immunity federal executive officials liability civil damages resulting constitutional violations certain officials judges prosecutors special nature responsibilities require absolute exemption liability cf butz economou determination immunity particular officials guided constitution federal statutes history public policy pp president absolute immunity functionally mandated incident unique office rooted constitutional tradition separation powers supported nation history singular importance president duties diversion energies concern private lawsuits raise unique risks effective functioning government doctrine bar every exercise jurisdiction president exercising jurisdiction must balance constitutional weight interest served dangers intrusion authority functions executive branch exercise jurisdiction warranted case merely private suits damages based president official acts pp president absolute immunity extends acts within outer perimeter duties office pp rule absolute immunity president leave nation without sufficient protection misconduct remains constitutional remedy impeachment well deterrent effects constant scrutiny press vigilant oversight congress incentives avoid misconduct may include desire earn reelection need maintain prestige element presidential influence president traditional concern historical stature pp powell delivered opinion burger rehnquist stevens joined burger filed concurring opinion post white filed dissenting opinion brennan marshall blackmun joined post blackmun filed dissenting opinion brennan marshall joined post herbert miller argued cause petitioner briefs stan mortenson john nolan argued cause respondent brief samuel perkins arthur spitzer louis alan clark filed brief government accountability project institute policy studies amicus curiae urging affirmance briefs amici curiae filed solicitor general lee roger marzulla william mellor iii mountain legal foundation john armor richard mayberry national taxpayers legal fund thomas madden senator orrin hatch et al justice powell delivered opinion plaintiff lawsuit seeks relief civil damages former president claim rests actions allegedly taken former president official capacity tenure office issue us scope immunity possessed president january respondent ernest fitzgerald lost job management analyst department air force fitzgerald dismissal occurred context departmental reorganization reduction force job eliminated announcing reorganization air force characterized action taken promote economy efficiency armed forces respondent discharge attracted unusual attention congress press fitzgerald attained national prominence approximately one year earlier waning months presidency lyndon johnson november fitzgerald appeared subcommittee economy government joint economic committee congress evident embarrassment superiors department defense fitzgerald testified transport plane approximate billion also revealed unexpected technical difficulties arisen development aircraft concerned fitzgerald might suffered retaliation congressional testimony subcommittee economy government convened public hearings fitzgerald dismissal press reported hearings prominently earlier announcement job eliminated department defense news conference december president richard nixon queried fitzgerald impending separation government service president responded promising look matter shortly news conference petitioner asked white house chief staff haldeman arrange fitzgerald assignment another job within administration also appears president suggested budget director robert mayo fitzgerald might offered position bureau budget fitzgerald proposed reassignment encountered resistance within administration internal memorandum january white house aide alexander butterfield reported haldeman fitzgerald doubt cost expert must given low marks loyalty loyalty name game butterfield therefore recommended let bleed least evidence white house efforts reemploy fitzgerald subsequent butterfield memorandum absent offer alternative federal employment fitzgerald complained civil service commission letter january alleged separation represented unlawful retaliation truthful testimony congressional committee commission convened closed hearing fitzgerald allegations may fitzgerald however preferred present grievances public brought suit injunction fitzgerald hampton app public hearings commenced january hearings generated publicity much devoted testimony air force secretary robert seamans although denied fitzgerald lost position retaliation congressional testimony seamans testified received advice white house fitzgerald job abolished secretary declined specific responded several questions invoking executive privilege news conference january president asked seamans testimony nixon took opportunity assume personal responsibility fitzgerald dismissal totally aware fitzgerald fired discharged asked resign approved seamans must talking someone discussed matter case person line deciding go decision submitted made stick hearing pages testimony chief examiner civil service commission issued decision fitzgerald case september decision appeal ernest fitzgerald reprinted app examiner held fitzgerald dismissal offended applicable civil service regulations examiner based conclusion finding departmental reorganization fitzgerald lost job though purportedly implemented economy measure fact motivated reasons purely personal respondent impermissible basis reduction force examiner recommended fitzgerald reappointment old position job comparable authority examiner however explicitly distinguished narrow conclusion suggested finding fitzgerald suffered retaliation testimony congress found commission evidence record support fitzgerald allegation position abolished separated retaliation revealed cost overrun testimony proxmire committee november following commission decision fitzgerald filed suit damages district raised essentially claims presented civil service commission defendants named eight officials defense department white house aide alexander butterfield one unnamed white house aides styled john district dismissed action district columbia statute limitations fitzgerald seamans supp dc appeals affirmed one defendant white house aide alexander butterfield fitzgerald seamans app appeals reasoned fitzgerald reason suspect white house involvement dismissal least year reasonable grounds suspicion arisen notably publication internal white house memorandum butterfield recommended fitzgerald least made bleed offered another job administration holding concealment illegal activity toll statute limitations appeals remanded action butterfield proceedings district following remand extensive discovery thereafter fitzgerald filed second amended complaint district july amended complaint eight years complained discharge civil service commission fitzgerald first named petitioner nixon party defendant also included defendants white house aide bryce harlow officials nixon administration additional discovery ensued march three defendants remained petitioner richard nixon white house aides harlow butterfield denying motion summary judgment district ruled action must proceed trial order march held fitzgerald stated triable causes action two federal statutes first amendment constitution also ruled petitioner entitled claim absolute presidential immunity petitioner took collateral appeal immunity decision appeals district columbia circuit appeals dismissed summarily apparently ground recent decision halperin kissinger app aff pertinent part equally divided rejected claimed immunity defense ruled scope immunity available president granted certiorari decide important issue ii addressing merits case must consider two challenges jurisdiction opposition petition certiorari respondent argued without jurisdiction review nonfinal order district rejected petitioner claim absolute immunity also must consider argument agreement parties mooted controversy petitioner invokes jurisdiction statute invests us authority review ases courts appeals petitioner case sought review interlocutory order denying claim absolute immunity appeals dismissed appeal lack jurisdiction emphasizing jurisdictional basis appeals decision respondent argued district order appealable case properly appeals within meaning agree collateral order doctrine cohen beneficial industrial loan small class interlocutory orders immediately appealable courts appeals defined cohen class embraces orders conclusively determine disputed question resolve important issue completely separate merits action effectively unreviewable appeal final judgment coopers lybrand livesay see cohen supra additional requirement cohen established collateral appeal interlocutory order must presen serious unsettled question least twice held orders denying claims absolute immunity appealable cohen criteria see helstoski meanor claim immunity speech debate clause abney claim immunity double jeopardy clause previous cases appeals district columbia circuit also treated orders denying absolute immunity appealable cohen see briggs goodwin app wilkey dissenting appealability issue mcsurely mcclellan app aff pertinent part en banc app cert dism sub nom mcadams mcsurely dismissing appeal case appeals appears reasoned petitioner appeal lay outside cohen doctrine raised serious unsettled question law argument pressed respondent asked appeals dismiss basis controlling decision halperin kissinger supra circumstances case agree petitioner interlocutory appeal failed raise serious unsettled question although appeals ruled halperin kissinger president entitled absolute immunity never held petition certiorari halperin pending time petitioner appeal dismissed light special solicitude due claims alleging threatened breach essential presidential prerogatives separation powers see nixon conclude petitioner present serious unsettled therefore appealable question appeals follows case appeals properly within certiorari jurisdiction shortly petitioner filed petition certiorari respondent entered opposition parties reached agreement liquidate damages terms petitioner nixon paid respondent fitzgerald sum consideration fitzgerald agreed accept liquidated damages event ruling petitioner entitled absolute immunity case decision upholding petitioner immunity claim payments made limited agreement parties left petitioner respondent considerable financial stake resolution question presented recently concluded case involving similar contract given respondents continued active pursuit monetary relief case remains definite concrete touching legal relations parties adverse legal interests havens realty coleman quoting aetna life ins haworth iii consistently recognized government officials entitled form immunity suits civil damages spalding vilas considered immunity available postmaster general suit damages based upon official acts drawing upon principles immunity developed english cases common law concluded interests people required grant absolute immunity public officers absence immunity reasoned executive officials hesitate exercise discretion way injuriously affect ing claims particular individuals even public interest required bold unhesitating action considerations public policy convenience therefore compelled judicial recognition immunity suits arising official acts exercising functions office head executive department keeping within limits authority apprehension motives control official conduct may time become subject inquiry civil suit damages seriously cripple proper effective administration public affairs entrusted executive branch government subjected restraint scheuer rhodes considered immunity available state executive officials suit alleging violation constitutional rights case rejected officials claim absolute immunity doctrine spalding vilas finding instead state executive officials possessed good faith immunity suits alleging constitutional violations balancing purposes imperatives public policy held varying scope qualified immunity available officers executive branch government variation dependent upon scope discretion responsibilities office circumstances reasonably appeared time action liability sought based construed subsequent cases scheuer established division immunity defenses suits executive officers scheuer accorded qualified immunity scope defense varied proportion nature official functions range decisions conceivably might taken good faith functional approach also defined second tier however especially sensitive duties certain officials notably judges prosecutors required continued recognition absolute immunity see imbler pachtman state prosecutors possess absolute immunity respect initiation pursuit prosecutions stump sparkman state judge possesses absolute immunity judicial acts approach reviewed detail butz economou considered first time kind immunity possessed federal executive officials sued constitutional violations butz rejected argument based decisions involving federal officials charged torts high federal officials right absolute immunity constitutional damages actions concluding blanket recognition absolute immunity anomalous light qualified immunity standard applied state executive officials held federal officials generally qualified immunity possessed state officials cases reaffirmed holdings officials notably judges prosecutors special nature responsibilities require full exemption liability butz upheld claim absolute immunity administrative officials engaged functions analogous judges prosecutors ibid also left open question whether federal officials show public policy requires exemption scope decisions concerning immunity government officials civil damages liability guided constitution federal statutes history additionally least absence explicit constitutional congressional guidance immunity decisions informed common law see butz economou supra imbler pachtman supra necessarily also weighed concerns public policy especially illuminated history structure government see butz economou supra imbler pachtman supra spalding vilas case presents claim president shielded absolute immunity civil damages liability case president inquiries history policy though mandated independently cases tend converge presidency exist development common law historical analysis must draw evidence primarily constitutional heritage structure historical inquiry thus merges almost inception kind public policy analysis appropriately undertaken federal inquiry involves policies principles may considered implicit nature president office system structured achieve effective government constitutionally mandated separation powers iv former president asserts immunity civil damages claims two kinds stands named defendant direct action constitution two statutory actions federal laws general applicability neither case congress taken express legislative action subject president civil liability official acts applying principles cases claims kind hold petitioner former president entitled absolute immunity damages liability predicated official acts consider immunity functionally mandated incident president unique office rooted constitutional tradition separation powers supported history justice story analysis remains persuasive incidental powers belonging executive department necessarily implied nature functions confided among must necessarily included power perform president therefore liable arrest imprisonment detention discharge duties office purpose person must deemed civil cases least possess official inviolability story commentaries constitution pp ed president occupies unique position constitutional scheme article ii constitution provides executive power shall vested president grant authority establishes president chief constitutional officer executive branch entrusted supervisory policy responsibilities utmost discretion sensitivity include enforcement federal law president charged constitutionally take care laws faithfully executed conduct foreign affairs realm recognized intolerable courts without relevant information review perhaps nullify actions executive taken information properly held secret management executive branch task imperative reasons requir unrestricted power president remove important subordinates important duties arguing president entitled qualified immunity respondent relies cases recognized immunity scope governors cabinet officers butz economou scheuer rhodes find cases inapposite president unique status constitution distinguishes executive officials singular importance president duties diversion energies concern private lawsuits raise unique risks effective functioning government case prosecutors judges absolute immunity established president must concern matters likely arouse intense feelings pierson ray yet decisions recognized precisely cases exists greatest public interest providing official maximum ability deal fearlessly impartially duties office ferri ackerman concern compelling officeholder must make sensitive decisions entrusted official constitutional system sheer prominence president office ignored view visibility office effect actions countless people president easily identifiable target suits civil damages cognizance personal vulnerability frequently distract president public duties detriment president office also nation presidency designed serve courts traditionally recognized president constitutional responsibilities status factors counseling judicial deference restraint example courts generally looked common law determine scope official evidentiary privilege recognized presidential privilege rooted separation powers constitution nixon settled law doctrine bar every exercise jurisdiction president see nixon supra burr cas cc cf youngstown sheet tube sawyer cases also established exercising jurisdiction must balance constitutional weight interest served dangers intrusion authority functions executive branch see nixon administrator general services nixon supra judicial action needed serve broad public interests acts derogation separation powers maintain proper balance cf youngstown sheet tube sawyer supra vindicate public interest ongoing criminal prosecution see nixon supra exercise jurisdiction held warranted case merely private suit damages based president official acts hold defining scope official absolute privilege recognized sphere protected action must related closely immunity justifying purposes frequently decisions held official absolute immunity extend acts performance particular functions office see butz economou cf imbler pachtman also refused draw functional lines finer history reason support see spalding vilas privilege extends matters committed law official control supervision barr matteo fact action taken within outer perimeter petitioner line duty enough render privilege applicable stump sparkman judicial privilege applies even acts occurring outside normal attributes judicial proceeding view special nature president constitutional office functions think appropriate recognize absolute presidential immunity damages liability acts within outer perimeter official responsibility constitution laws president discretionary responsibilities broad variety areas many highly sensitive many cases difficult determine president innumerable functions encompassed particular action case example respondent argues dismissed retaliation testimony congress violation supp iv air force however claimed underlying reorganization undertaken promote efficiency assuming petitioner nixon ordered reorganization respondent lost job inquiry president motives avoided kind functional theory asserted respondent dissent inquiries kind highly intrusive respondent argues petitioner nixon acted outside outer perimeter duties ordering discharge employee lawfully entitled retain job absence cause promote efficiency service brief respondent citing congress granted legislative protection respondent argues federal official within outer perimeter duties office cause fitzgerald dismissed without satisfying standard prescribed statutory proceedings construction subject president trial virtually every allegation action unlawful taken forbidden purpose adoption construction thus deprive absolute immunity intended effect clearly within president constitutional statutory authority prescribe manner secretary conduct business air force see mandate office must include authority prescribe reorganizations reductions force conclude petitioner alleged wrongful acts lay well within outer perimeter authority rule absolute immunity president leave nation without sufficient protection misconduct part chief executive remains constitutional remedy impeachment addition formal informal checks presidential action apply equal force executive officials president subjected constant scrutiny press vigilant oversight congress also may serve deter presidential abuses office well make credible threat impeachment incentives avoid misconduct may include desire earn reelection need maintain prestige element presidential influence president traditional concern historical stature existence alternative remedies deterrents establishes absolute immunity place president law president judges prosecutors absolute immunity merely precludes particular private remedy alleged misconduct order advance compelling public ends vi reasons stated opinion decision appeals reversed case remanded action consistent opinion ordered footnotes see dismissal ernest fitzgerald department defense hearings subcommittee economy government joint economic committee sess members congress also signed letter president protesting firing dedicated public servant punitive action briefing memorandum fitzgerald matter prepared white house staff anticipation possible inquiry forthcoming press conference authored aide patrick buchanan advanced view air force firing good public servant app memorandum patrick buchanan richard nixon memorandum suggested president order fitzgerald retention defense department see deposition haldeman deposition petitioner richard nixon haldeman deposed testimony based handwritten notes december see deposition robert mayo deposition richard nixon mayo deputy james schlesinger appear resisted least partly due suspicion fitzgerald lacked institutional loyalty executive policies spoke freely communications friends capitol hill also stated positions presently unavailable within bureau budget see deposition robert mayo deposition james schlesinger quoted decision appeal ernest fitzgerald csc decision reprinted app page citations csc decision refer cited page joint appendix memorandum added owe first choice fitzgerald senator proxmire others tried hard make hero exposing cost overruns suspicion fitzgerald assumed loyalty toward senator proxmire widely shared white house defense department according csc decision supra fitzgerald denied senator proxmier sic boy air force may honestly believe find statement difficult accept evident top officials air force without specifically saying considered also note upon leaving air force fitzgerald employed consultant proxmire committee senator proxmire appeared commission hearing character witness fitzgerald app see see ibid hours press conference nixon repeated privately presidential aide charles colson ordered fitzgerald firing recorded conversation transcription statement white house press secretary ronald ziegler conversation aide john ehrlichman following conversation charles colson see supra president claimed responsibility fitzgerald dismissal ehrlichman corrected several details however president concluded thinkin another case recorded conversation see conversation retraction ordered fitzgerald position air force excepted service therefore covered civil service rules regulations competitive service fitzgerald hampton app see csc decision app hampton however held fitzgerald employment nonetheless legislative protection since preference eligible veteran entitled various statutory protections veterans preference act see app among benefits procedures established civil service regulation see examiner found fitzgerald fact dismissed superiors dissatisfaction job performance app attitude evidenced statements team player air force team without deciding whether adequate basis adverse action fitzgerald inadequate unsatisfactory employee examiner held commission adverse action procedures current version codified cfr pt implicitly forbade air force employ reduction force means dismissing respondent reasons personal app commission also ordered fitzgerald receive backpay following commission order respondent offered new position defense department one regarded equivalent former employment fitzgerald accordingly filed enforcement action district litigation ultimately culminated settlement agreement terms air force agreed reassign fitzgerald former position management systems deputy assistant secretary air force effective june see settlement agreement fitzgerald hampton et civ dc june complaint alleged continuing conspiracy deprive job deny reemployment besmirch reputation fitzgerald alleged conspiracy continued commission hearings remained existence initiation lawsuit see fitzgerald seamans supp dc general allegations complaint remained essentially unchanged averring nixon participation alleged conspiracy complaint quoted petitioner press conference statement totally aware fact approved fitzgerald dismissal second amended complaint fitzgerald butterfield civ dc see app pet cert district held respondent entitled infer cause action supp iv neither expressly confers private right sue relief damages first supp iv provides generally right employees furnish information either house congress committee member thereof may interfered denied second criminal statute making crime obstruct congressional testimony correctness decision cause action implied statutes currently us explained infra case collateral order doctrine review district denial petitioner motion dismiss ground enjoyed absolute immunity civil suit district also held respondent stated claim common law district columbia respondent subsequently abandoned cause action see supplemental brief opposition see brief opposition although fitzgerald continued urge argument challenge jurisdictional therefore address statute provides pertinent part cases courts appeals may reviewed following methods writ certiorari granted upon petition party civil criminal case rendition judgment decree serious doubt concerning power review appeals decision dismiss lack jurisdiction power exercised routinely see gardner westinghouse broadcasting lacked authority decisions dismiss want jurisdiction insulated entirely review taken jurisdiction case need remand appeals decision merits immunity question pure issue law appropriate immediate resolution especially light appeals decision issue presented concerns judicial economy fully warrant decision important question presented respondent filed copy agreement clerk august appendix brief opposition motion morton ina david mark gary halperin intervene relief june prior action petition certiorari counsel parties advised clients reached agreement liquidate damages remained live controversy counsel include copy agreement initial submission spalding vilas distinguished ground suit postmaster general asserted constitutional cause action see butz economou although butz economou supra described requisite inquiry one public policy focus inquiry accurately may viewed terms inherent structural assumptions scheme government present case therefore presented implied causes action need address directly immunity question arise congress expressly created damages action president approach accords settled policy avoiding unnecessary decision constitutional issues reviewing case collateral order doctrine see supra assume purposes opinion private causes action may inferred first amendment two statutes respondent relies follow must considering bivens bivens six unknown fed narcotics agents remedy interpreting statute light immunity doctrine assume cause action runs president cf tenney brandhove construing light immunity doctrine accept congress impinge tradition legislative immunity well grounded history reason covert inclusion general language us therefore address issues arise congress undertaken deprive state legislators absolute immunity consequently holding today need president absolutely immune civil damages liability official acts absence explicit affirmative action congress decide constitutional issue necessary disposition case us art ii chicago southern air lines waterman myers noting speech debate clause provides textual basis congressional immunity respondent argues framers must assumed rejected similar grant executive immunity argument unpersuasive first specific textual basis considered prerequisite recognition immunity provision expressly confers judicial immunity yet immunity judges well settled see bradley fisher wall stump sparkman second already established absolute immunity may extended certain officials executive branch butz economou see imbler pachtman extending immunity prosecutorial officials within executive branch third historical evidence may inferred framers assumed president immunity damages liability constitutional convention several delegates expressed concern subjecting president even impeachment impair capacity perform duties office see farrand records federal convention remarks gouverneur morris remarks charles pinckney delegates course agree impeachment clause nothing debates suggests expectation president subjected distraction suits disappointed private citizens senator maclay recorded views senator ellsworth vice president john adams delegates convention president personally subject process whatever put power common justice exercise authority stop whole machine government journal william maclay maclay ed justice story writing held implicit separation powers president must permitted discharge duties undistracted private lawsuits story commentaries constitution pp ed quoted supra thomas jefferson also argued president intended subject judicial process chief justice marshall held burr cas cc subpoena duces tecum issued president jefferson protested strongly stated broader view proper relationship judiciary president leading principle constitution independence legislature executive judiciary none jealous judiciary executive independent judiciary subject commands latter imprisonment disobedience several courts bandy pillar post keep constantly trudging north south east west withdraw entirely constitutional duties intention constitution branch independent others manifested means furnished protect enterprises force attempted others none given effectual diversified means executive works thomas jefferson ford ed quoting letter president jefferson prosecutor burr trial emphasis original light fragmentary character important materials reflecting framers intent think compelling arguments arise constitution separation powers judiciary historic understanding doctrine see text supra primary reliance constitutional structure judicial precedent misunderstood best historical evidence clearly supports presidential immunity upheld justice white dissent cites materials including ambiguous comments made state ratifying conventions remarks single publicist historical evidence must weighed well cited weight evidence considered think must place reliance contemporary understanding john adams thomas jefferson oliver ellsworth powerful support derives actual history private lawsuits president prior litigation explosion commencing bivens decision fewer handful damages actions ever filed president none appears proceeded judgment merits among persuasive reasons supporting official immunity prospect damages liability may render official unduly cautions discharge official duties judge learned hand wrote gregoire biddle cert denied justification denying recovery impossible know whether claim well founded case tried submit officials innocent well guilty burden trial inevitable danger outcome dampen ardor resolute dangers significant even though historical record numerous suits president since right sue federal officials damages constitutional violations even recognized bivens six unknown fed narcotics agents tradition traced far back constitutional history see mississippi johnson wall fully satisfied jurisdiction bill enjoin president performance official duties bill received us kendall pet executive power vested president far powers derived constitution beyond reach department except mode prescribed constitution impeaching power see reynolds secretary air force carl zeiss stiftung carl zeiss jena dc aff sub nom carl zeiss jena clark app cert denied department justice officials although president party enjoined secretary commerce executing direct presidential order see recognized lesser public interest actions civil damages example criminal prosecutions see gillock cf nixon basing holding special importance evidence criminal trial distinguishing civil actions raising different questions presented decision never denied absolute immunity may impose regrettable cost individuals whose rights violated contrary suggestion justice white dissent true jurisprudence ordinarily supplies remedy civil damages every legal wrong dissent objections ground weigh equally absolute immunity official yet dissent makes attack absolute immunity recognized judges prosecutors cases identify another area law damages remedy every legal wrong cases establish victims statutory crimes ordinarily may sue federal absence expressed congressional intent provide damages remedy see merrill lynch pierce fenner smith curran middlesex county sewerage auth national sea clammers california sierra club justice white refer jurisprudence implied rights action moreover dissent undertakes discussion cases bivens line suggested damages relief circumstances counseling hesitation judiciary see bivens six unknown fed narcotics agents supra carlson green direct constitutional actions officials independent status constitutional scheme judicially created remedies might inappropriate even case justice white places principal reliance marbury madison cranch provides dubious support best dissent cites marbury proposition essence civil liberty certainly consists right every individual claim protection laws whenever receives injury yet marbury establish individual protection must come form particular remedy marbury remembered lost case turned away suggestion gone elsewhere claim case clear least fitzgerald entitled seek remedy civil service commission remedy availed see supra presence alternative remedies played important role previous decisions area official immunity imbler pachtman emphasize immunity prosecutors liability suits leave public powerless deter misconduct punish occurs remedy plays central role respect misconduct federal judges also possess absolute immunity see kaufman chilling judicial independence yale congressmen may removed office vote colleagues art cl prior petitioner nixon resignation office house judiciary committee convened impeachment hearings see generally report committee judiciary house representatives impeachment richard nixon president dissenting opinions argue decision places president law contention rhetorically chilling wholly unjustified remedy impeachment demonstrates president remains accountable law misdeeds office case involves damages remedy although president liable civil damages official misbehavior lift law dissents suggest judge law enters judgment held answerable civil damages prosecutor law files indictment congressman law engages legislative speech debate simply error characterize official law particular remedy available chief justice burger concurring join opinion write separately underscore president immunity derives mandated constitutional doctrine separation powers indeed taken granted nearly two centuries reaching conclusion well bear mind focus must simply matter judging individual conduct setting rather familiar terms john marshall constitution expounding constitutional adjudication often bears unpalatable fruit needs system government sometimes must outweigh right individuals collect damages strains meaning words used say places president law nixon dissents wide mark extent imply today recognizes sweeping immunity president acts thing immunity limited civil damages claims moreover president like members congress judges prosecutors congressional aides absolute immunity immune acts outside official duties ante even broad immunity speech debate clause limits dissenting opinion justice white confuses judicial process subpoena sense civil damages suit post quotes language nixon supra though language relevance matter immunity civil damages either doctrine separation powers need confidentiality without sustain absolute unqualified presidential privilege immunity judicial process circumstances post emphasis added immunity president civil suits simply doctrine derived interpretation common law public policy absolute immunity president acts within official duties chief executive either found constitutional separation powers exist today holds constitution mandates immunity agree essential purpose separation powers allow independent functioning coequal branch government within assigned sphere responsibility free risk control interference intimidation branches nixon supra gravel even prior adoption constitution well judicial review legislative action recognized instances necessary maintain proper checks balances den dem bayard wife singleton cases judges appeals cf marbury madison cranch however judiciary always must hesitant probe elements presidential decisionmaking branches hesitant probe judicial decisionmaking judicial intervention tolerated absent imperative constitutional necessity nixon supra opinion correctly observes judicial intrusion private damages actions improperly impinges hence interferes independence imperative functioning office president exposing president civil damages actions official acts within scope executive authority inevitably subject presidential actions undue judicial scrutiny well subject president harassment enormous range impact presidential decisions far beyond one member congress inescapably means many persons consider aggrieved acts absent absolute immunity every person feels aggrieved free bring suit damages suit especially proceed merits involve judicial questioning presidential acts including reasons decision arrived information based supplied information scrutiny decisions executive branch bound occur civil damages actions made available private individuals although individual claims wrongful conduct may indeed sustained injury need prevent invasion executive function judiciary far outweighs need vindicate private claims decided similar sense members houses congress aides must totally free judicial scrutiny legislative acts public interest words outweighs need private redress one claiming injury legislative acts member aide member concern even emphatic concerns expressed justice white dissent unremedied wrongs citizens president seem odd one compares potential wrongs thousands congressional aides prosecutors judges theoretically inflict absolute immunity citizens concern expressed see supra judicial intervention also inevitably inhibit processes executive branch decisionmaking impede functioning office president need defend damages suits serious effect diverting attention president executive duties since defending lawsuit today even lawsuit ultimately found frivolous often requires significant expenditures time money many former public officials learned sorrow case graphically illustrates point litigation processes tightly controlled often used mechanisms extortion ultimate vindication merits repair damage fully agree constitutional concept separation independent coequal powers dictates president immune civil damages actions based acts within scope executive authority office far placing president law holding places president essentially footing judges officials whose absolute immunity recognized presidential immunity official acts office never seriously questioned recently ante find one instance prior decision bivens six unknown fed narcotics agents citizen sued former president acts committed office suit thomas jefferson dismissed improperly brought virginia thus precluding necessity reaching immunity issue livingston jefferson cas cc parade horribles lamentations dissents also wholly fail acknowledge perils fear present absolute immunity law long recognized numerous officials least public officers absolute immunity civil damages suits acts within scope official functions dissenting opinions manifest astonishing blind side pointing old reliable man law difficulty expanding absolute immunity members congress granting derivative absolute immunity numerous aides members gravel since recognized absolute immunity judges stump sparkman prosecutors imbler pachtman yet constitution provides hint either judges prosecutors congressional aides protected absolute immunity judges prosecutors seen derive common law public policy recognize need protect judges prosecutors harassment potential danger citizenry malice thousands prosecutors judges pervasive less open constant public scrutiny actions president brewster held speech debate clause prohibit prosecution senator accepting bribe designed influence legislative acts justice white suggests prior today presidents prosecutors judges congressional aides officials held liable kind claim put forward fitzgerald personnel decision allegedly made unlawful reasons post emphasis added law permit plaintiff recite magic words pleadings incantation operate make immunities vanish justice white errs fundamentally treating officials scope authority identical authority president head executive branch government wholly unique office far broader official notes president authority course personnel changes executive department make personnel decisions decision wrong statutory remedies provided see infra say given case appropriate raise question whether official even president acted within scope official constitutional statutory duties doctrine absolute immunity extend beyond actions gravel federal tort claims act reflects policy distinction congress waived sovereign immunity certain damages claims pointedly excepted discretionary function duty whether discretion involved abused act damage resulting discretionary governmental action subject compensation see dalehite uncompensated injuries congress may discretion provide separate nonjudicial remedies private bills case fitzgerald received substantial relief route provided congress civil service commission ordered reinstated backpay app similarly situated persons therefore without adequate remedy see post white dissenting addition respondent fitzgerald also received settlement hardly said remedy judge learned hand described feelings dozen years experience must say litigant dread lawsuit beyond almost anything else short sickness death lectures legal topics association bar city new york suggests need address directly whether congress create damages action president ante however holding view effectively resolves issue established constitution confers absolute immunity holds today legislative action alter result nothing opinion read suggesting constitutional holding legislatively overruled modified marbury madison cranch justice white justice brennan justice marshall justice blackmun join dissenting four dissenting members butz economou argued federal officials entitled absolute immunity suit action take connection official duties immunity extend even actions taken express knowledge conduct clearly contrary controlling statute clearly violative constitution fortunately majority rejected approach held although public officials perform certain functions entitle absolute immunity immunity attaches particular functions particular offices officials performing functions immunity absolute enjoy qualified immunity liable damages conduct violated law realized conduct illegal applies dissenting view butz office president president acting within outer boundaries presidents normally may without liability deliberately cause serious injury number citizens even though knows conduct violates statute tramples constitutional rights injured even president case ordered fitzgerald fired means reduction force knowing discharge contrary civil service laws absolutely immune suit token president without following statutory procedures knows apply well federal officials orders subordinates wiretap break home purpose installing listening device officers comply request president absolutely immune suit immune regardless damage inflicts regardless violative statute constitution knew conduct regardless purpose intimates decision grounded constitution case congress provide remedy presidential misconduct criminal laws wholly inapplicable president find approach completely unacceptable agree office president operate effectively holder office must permitted without fear liability regardless function performing deliberately inflict injury others conduct knows violates law taken approach cases butz held absolute immunity attach office held member president cabinet specific functions performed officer absolute immunity clearly essential members congress absolutely immune speech debate clause constitution immunity extends legislative acts never held order legislative work done necessary immunize tasks legislators must perform constitutional immunity extend many things senators representatives regularly necessarily legislative acts members congress example repeatedly importune executive branch administrative agencies outside hearing rooms legislative halls immune connection activity deliberately violate law brewster example makes clear neither member congress aide immune damages suits order secure information deemed relevant legislative investigation breaks house carries away records gravel judges absolutely immune liability damages performing judicial function even subject criminal liability see dennis sparks littleton absolute immunity prosecutors likewise limited prosecutorial function prosecutor directs investigation carried way patently illegal immune marbury madison cranch speaking chief justice observed important political powers committed president performance neither appointees accountable question whether legality act head department examinable justice must always depend nature act nevertheless refuses follow course respect president makes effort distinguish categories presidential conduct absolutely immune categories conduct qualify level immunity instead concludes whatever president however contrary law knows conduct may without fear liability injure federal employees person within without government attaching absolute immunity office president rather particular activities president might perform places president law reversion old notion king wrong concept survived country form sovereign immunity doctrine forecloses suit government government officials suit latter actually seeks relief sovereign larson domestic foreign commerce suit officer however may maintained seeks specific relief conduct contrary statutory authority constitution however clothes office president sovereign immunity placing beyond law marbury madison supra chief justice speaking observed government emphatically termed government laws men certainly cease deserve high appellation laws furnish remedy violation vested legal right consistently adhered proposition scheuer rhodes unanimous held governor state entitled qualified immunity reached position even though recognized case higher officers executive branch inquiry far complex since range decisions choices whether formulation policy legislation budgets decisions virtually infinite short since options chief executive principal subordinates must consider far broader far subtle made officials less responsibility range discretion must comparably broad accountability individual individual conduct lies core law indeed organized societies trend eliminate modify sovereign immunity unrelated development moved away king wrong principle individual accountability fundamental structure organized society eroded anarchy impotence remains essential civil well criminal justice previously stated law privilege defense damages actions officers government large part judicial making butz economou quoting barr matteo mean simply enacted view best public policy doubt judicial convictions public policy whether kind immunity necessary wise played part courts guided constrained tradition relevant statutory background constitutional structure history cases dealing immunity members congress constructions speech debate clause guided history privileges common law decisions dealing immunity state officers involve question whether extent congress intended abolish privileges providing remedy predecessor constitutional violations state officials decisions respecting immunity federal officials including absolute immunity judges prosecutors officials similar work also large part reflect views well judicial conclusions privileges necessary particular functions performed public interest unfortunately little approach decision today casually candidly abandons functional approach immunity run decisions ante indeed majority turns rule head declaring functions president office varied diverse profoundly important office unique must clothed officewide absolute immunity policy law view poor policy declaring president absolutely immune suit deliberate knowing violation constitution federal statute asserts immunity rooted constitutional tradition separation powers supported history ante decision thus earmarks constitutional pronouncement absolute immunity president office mandated constitution although appears disclaim ante difficult read opinion coherently standing narrower proposition attempts subject president liability either congress statutory action courts bivens bivens six unknown fed narcotics agents proceeding violate separation powers generalized absolute immunity sustained examined traditional manner light traditional judicial sources petitioner amicus rely principally two arguments support claim absolute immunity president civil liability absolute immunity incidental power presidency historically recognized implicit constitution absolute immunity required doctrine address contentions speech debate clause art guarantees absolute immunity members congress nowhere however constitution directly address issue presidential immunity petitioner nevertheless argues debates constitutional convention early history constitutional interpretation demonstrate implicit assumption absolute presidential immunity support position petitioner relies primarily three separate items first preratification remarks made discussion presidential impeachment convention federalist second remarks made meeting first senate third views justice story debate convention whether president impeachable touch potential dangers subjecting president control another branch legislature gouverneur morris example complained potential dependency argued president criminal act without coadjutors may punished case sufficient proof innocence colonel mason responded asking man shall justice argued least appropriate man commit extensive injustice madison agreed indispensable provision made defending community agst incapacity negligence perfidy chief magistrate pinckney responded side believing granted power legislature hold impeachment rod executive means effectually destroy independence petitioner concludes delegates meant impeachment exclusive means holding president personally responsible misdeeds outside electoral politics conclusion however hardly supported debate although delegates expressed concern limiting presidential independence delegates voted favor impeachment whatever fear subjecting president power another branch sufficient least sufficiently shared insulate president political liability impeachment process moreover convention debate focus wrongs president might commit individuals rather whether method holding accountable might termed wrongs state thus examples abuses concerned delegates betrayal oppression bribery delegates feared alternative impeachment mechanism tumults insurrections people response abuses farrand conclusions drawn debate independence executive understood require total lack accountability branches general desire insulate president consequences improper acts much said response petitioner reliance federalist essay hamilton asked whether presidency combines requisites safety republican sense due dependence people due responsibility federalist cooke ed answered constitutional plan met test subjected president electoral process possibility impeachment including subsequent criminal prosecution petitioner concludes intended exclusive means restraining presidential abuses means follows hamilton concerned federalist delegates convention larger political abuses wrongs state president might commit consider legal means might available redress individualized grievances omission taken imply exclusion circumstances well illustrated comparing remarks made state ratifying conventions hamilton discussion north carolina ratifying convention example discussion adequacy impeachment mechanism holding executive officers accountable misdeeds governor johnson defended constitutional plan distinguishing three legal mechanisms accountability officer commits offence individual amenable courts law commits crimes state may indicted punished impeachment extends high crimes misdemeanors public office mode trial pointed great misdemeanors public president superior officer see laws put execution amenable maladministration office possible suppose president give wrong instructions deputies whereby citizens distressed redress ordinary courts common law president placed high possessed power far contemptible yet single privilege annexed character far laws amenable private character citizen public character impeachment second piece historical evidence cited petitioner exchange first meeting senate involving vice president adams senators ellsworth maclay debate started whether words president included beginning federal writs similar manner english writs ran king name senator maclay thought improperly combine executive judicial branches turn led discussion proper relation two senator ellsworth vice president adams defended proposition president personally subject process whatever action whatever brought power judges justices put power common justice exercise authority stop whole machine government final item cited petitioner clearly supports position late date contributes little understanding original intent commentaries constitution published justice story described incidental powers president among must necessarily included power perform functions without obstruction impediment whatsoever president therefore liable arrest imprisonment detention discharge duties office purpose person must deemed civil cases least possess official inviolability exercise political powers use discretion accountable country conscience decision relation powers subject control discretion exercised conclusive senator pinckney arguing floor senate contrasted privileges extended members congress constitution lack privileges extended president argued deliberate choice delegates convention well knew oppressively power undefined privileges exercised great britain determined authority ever exercised annals cong therefore privilege kind intended executive except legislature previous immunity cases emphasized importance immunity afforded particular government official common law see imbler pachtman clearly sort analysis possible dealing office presidency exist common law extent historical inquiry appropriate context constitutional history common law relevant history discussed however concluded absolute immunity civil liability president finds support constitutional text history explanations earliest commentators weak ground support declaration president absolutely immune civil liability regardless source liability injury redress sought much majority implicitly concedes since history text traditional sources judicial argument merit opinion ante bright line drawn arguments absolute immunity based constitutional principle separation powers arguments based refers public policy necessarily follows functional interpretation doctrine determining whether act disrupts proper balance coordinate branches proper inquiry focuses extent prevents executive branch accomplishing constitutionally assigned functions nixon administrator general services difference one degree absolute immunity might maximize executive efficiency therefore worthwhile policy lack immunity may disrupt functioning presidency violate doctrine insofar liability case congressional origin petitioner must demonstrate subjecting president private damages action prevent accomplishing constitutionally assigned functions insofar liability based bivens action perhaps lower standard functional disruption appropriate petitioner surely met former burden believe met latter standard either taken face value position matter constitutional law president absolutely immune mean immune damages actions also suits injunctive relief criminal prosecutions indeed kind judicial process contention president immune criminal prosecution courts criminal laws enacted congress matter claim credible constitution provides impeachment shall bar indictment trial judgment punishment according law art cl similarly cases indicate immunity damages actions carries protection criminal prosecution supra neither serious claim doctrine insulates presidential action judicial review insulates president judicial process argument made president whatever liability money damages subject courts injunctive powers see youngstown sheet tube supra korematsu panama refining ryan petitioner attempt draw analogy speech debate clause brief petitioner one purpose prevent accountability possibly hostile judiciary gravel breaks point speech debate clause guarantees speech debate congressmen shall questioned place thus assures congressmen official capacity shall subject courts injunctive powers protection afforded executive indeed cases cited indicate rule exception executive actions including taken immediate direction president subject judicial review regardless possibility money damages president constitutionality president actions legality applicable statutes subject review indeed case respondent fitzgerald dismissal set aside civil service commission contrary applicable regulations issued pursuant authority granted congress private damages actions distinguished ground claims involve president personally litigation way necessitated suits seeking declaratory injunctive relief certain presidential actions president held subject judicial process least since burr cas cc marshall sitting circuit justice burr squarely ruled subpoena may directed president nixon sirica app chief justice marshall flatly rejected suggestion judicial process constitutes unwarranted interference presidency guard furnished high officer protect harassed vexatious unnecessary subpoenas looked conduct subpoenas issued circumstance precede issued emphasis added either doctrine separation powers need confidentiality without sustain absolute unqualified presidential privilege immunity judicial process circumstances said butz economou unfair hold liable official knows know acting outside law insisting awareness clearly established constitutional limits unduly interfere exercise official judgment today decision harlow fitzgerald post makes clear president subject civil liability held liable action knew objective matter known illegal clear abuse authority power circumstances question must answered bear cost resulting injury wrongdoer victim principle guide deciding question stated long ago chief justice marshall essence civil liberty certainly consists right every individual claim protection laws whenever receives injury marbury madison cranch much recently considered role damages remedy performance courts traditional function enforcing federally guaranteed rights historically damages regarded ordinary remedy invasion personal interests liberty bivens six unknown fed narcotics agents extent denies otherwise appropriate remedy denies victim right made whole therefore denies protection laws president remedial obligations toward injures federal officer surprising proposition fairness remedial principle far followed wrongdoer victim ordinarily bear costs injury found outweighed instances potential liability thought injure governmental decisionmaking process imbler pachtman white concurring judgment argument immunity possibility damages action least effect performance official responsibilities effect deter unconstitutional otherwise illegal behavior may however lead officers careful less vigorous performance duties caution course always virtue undue caution avoided possibility liability may circumstances distract officials performance duties influence performance duties ways adverse public interest public policy argument favor absolute immunity cast broad terms applies officers state federal officers perform responsibilities without regard personal interests threatened possibility lawsuit see imbler supra white concurring judgment inevitably reduces public policy argument nothing expression judicial inclination officers encouraged perform functions vigor although less care response today problem apply argument individual functions offices evaluate effect liability governmental decisionmaking within function light substantive ends encouraged discouraged case therefore examine functions implicated causes action issue effect potential liability performance functions ii functional approach doctrine recent immunity decisions converge following principle scope immunity determined function office wholesale claim president entitled absolute immunity actions stands firmer ground claim presidential communications entitled absolute privilege rejected favor functional analysis unanimous nixon therefore whatever may true necessity broad immunity certain areas executive responsibility question must answered whether dismissal employees falls within constitutionally assigned executive function performance substantially impaired possibility private action damages believe respondent far proceeded action basis three separate causes action two federal statutes supp iv first amendment point litigation availability causes action us assuming correctness lower determination two federal statutes create private right action find suggestion president immune causes action unconvincing attempt found immunity upon argument particularly unconvincing first statutes supp iv right employees furnish information either house congress committee member thereof may interfered denied second makes crime obstruct congressional testimony take much insight see least one purpose statutes assure congressional access information possession executive branch congress believes requires order carry responsibilities insofar statutes implicate argument think opposite suggested petitioner accepted majority enacting statutes congress sought preserve constitutionally mandated functions face recalcitrant executive thus problem addressed statutes first presidential behavior intruded upon burdened congress performance constitutional responsibilities response say cause action disrupt president furtherance responsibilities approach ignores problem lies behind congressional action assumes presidential functions valued congressional functions argument congress providing damages action statutes assumed case adopted unconstitutional means furthering ends must rest premise presidential control executive employment decisions constitutionally assigned presidential function congress may significantly interfere frivolous contention perkins held congress law vests appointment inferior officers heads departments may limit restrict power removal deems best public interest whatever rule may respect high officers see humphrey executor respect fill traditional bureaucratic positions restrictions executive authority rule exception case demonstrates severe statutory restraints president operates area fitzgerald civil service employee working office secretary air force although position fall within excepted service ordinarily mean civil service rules regulations applicable removals protect cfr status veteran entitled special protections veterans entitled certain civil service benefits afforded preference eligibles ed supp iv benefits include set forth supp iv agency may take adverse action employee cause promote efficiency service similarly veteran status entitled fitzgerald protection procedures established civil service regulation ed supp iv precisely procedures chief examiner civil service commission found violated recommendation respondent reappointed old position job comparable authority brief review enough illustrate point personnel decisions sort involved case emphatically constitutionally assigned presidential function tolerate interference either two branches government important quantitative analysis degree intrusion presidential decisionmaking permitted area however qualitative analysis suggested part absolute immunity appropriate threat liability may bias decisionmaker ways adverse public interest various regulations statutes protecting civil servants arbitrary executive action illustrate area public interest demonstrably side encouraging less vigor caution part decisionmakers steps congress taken assure executive employees able freely testify congress assure subject arbitrary adverse actions indicate policy arguments elsewhere justified absolute immunity applicable absolute immunity nothing judicial declaration policy directly contradicts policy protecting civil servants reflected statutes regulations respondent fact proceeded two statutory claims bivens action superfluous respondent may collect damages twice injuries put forward respondent basis statutory constitutional claims said congress create equally effective alternative remedies need damages relief directly constitution might obviated davis passman nevertheless majority decides president absolutely immune bivens action well shall express disagreement conclusion bivens six unknown fed narcotics agents held individuals suffered compensable injury violation rights guaranteed fourth amendment may invoke general jurisdiction federal courts suit damages conclusion rested two principles first essence civil liberty certainly consists right every individual claim protection laws quoting marbury madison cranch second istorically damages regarded ordinary remedy invasion personal interests liberty butz economou rejected argument federal government federal officers including cabinet officers absolutely immune civil liability constitutional violations position recognized substantially undercut conclusion bivens held although performance certain limited functions protected shield absolute immunity general rule federal officers like state officers qualified immunity finally davis passman supra held congressman held liable damages suit brought federal alleging violation individual rights guaranteed plaintiff due process clause view cases largely settled issues raised bivens problem cases established following principles first exclusive prerogative legislative branch create federal cause action constitutional violation absence adequate legislatively prescribed remedies general jurisdiction federal courts permits courts create remedies legal equitable appropriate character injury second exercise judicial function create problem held executive legislative officers subject judicially created cause action instance rejected arguments holding federal officers liable damages constitutional injuries violates principles imposing equitable remedies traditional function judicial review third federal officials generally qualified immunity suits absolute immunity extended certain functions basis showing exposure liability inconsistent proper performance official duties responsibilities finally congress retains power restrict exposure liability policy judgments implicit decision properly made congress majority fails recognize force already done area principles president claim circumstances subject action violating respondent constitutional rights rather must assert absence absolute immunity substantially impair ability carry particular functions constitutional responsibility reasons presented believe argument successfully made circumstances case course theoretically possible president held absolutely immune functions constitutional responsibility substantially impaired possibility civil liability think argument valid simple reason function involved character side line presidential functions fall need decided case majority opinion suggests variant argument argues every presidential function character distinguishing particular functions involved given case difficult ante even true necessarily follow president entitled absolute immunity still depend whether unclear instances likely case one functions implicated deserves protection absolute immunity particular case see function believe subjecting president bivens action create problems public policy problems different involved subjecting president statutory cause action relying upon history text constitution well analytic method prior cases conclude problems sufficient justify absolute immunity president general circumstances case particular iii importance case appropriate examine reasoning majority opinion opinion suffers serious ambiguity even respect fundamental point broad immunity granted president opinion suggests scope limited fact none asserted causes action congress taken express legislative action subject president civil liability official acts ante never told however congressional action make difference apparent propositions relied upon majority immunize president apply equally statutory cause action majority indicate new principles operate undercut propositions end majority seems overcome initial hesitation announces consider absolute immunity functionally mandated incident president unique office rooted constitutional tradition separation powers supported history ante see also ante rule absolute immunity president leave nation without sufficient protection misconduct part chief executive majority opinion recognizes settled law doctrine bar every exercise jurisdiction president bases conclusion least part suggestion special jurisprudence presidency ante nixon upheld power federal district issue subpoena duces tecum president cases enjoined executive officials carrying presidential directives see youngstown sheet tube sawyer case ever suggestion mere formalism name appearing complaint important resolving problems substantive character judicial intrusion upon executive functions majority suggests doctrine permits exercising jurisdiction president instances judicial action needed serve broad public interests acts derogation separation powers maintain proper balance ante without explanation majority contends merely private suit damages serve function ibid suggestion enforcement rule law subjecting president rules general applicability separation powers rather derogation purpose bizarre stake suit sort extent based upon statutorily created cause action ability congress assert legal restraints upon executive courts perform function providing redress legal harm regardless might think merits fitzgerald claim idea pursuit legal redress offends doctrine separation powers frivolous contention passing legal argument similarly majority implies assertion constitutional cause action whole point assure officer transgress constitutional limits authority may offend concerns surely perverse approach constitution whatever arguments favor absolute immunity may untenable argue subjecting president constitutional restrictions undercut unique role system government seriously argued president must placed beyond law beyond judicial enforcement constitutional restraints upon executive officers order implement principle separation powers focusing actual arguments majority offers holding absolute immunity president one finds surprisingly little read relevant section opinion find three contentions majority draws conclusion little makeweight together hardly suffice justify wholesale disregard traditional approach immunity questions first majority informs us president occupies unique position constitutional scheme including responsibilities administration justice foreign affairs management executive branch ante true may says nothing unique rule immunity apply president president unique role may indeed encompass functions entitled claim absolute immunity follow however entitled absolute immunity either general case particular reason majority believes uniqueness president shifts burden respondent prove rule absolute immunity apply respondent failed effort suggests president uniqueness makes inapposite analogy cases dealing executive officers ante even true follow president entitled absolute immunity mean particular argument place fact true nothing president unique role makes arguments used cases inappropriate second majority contends president visibility makes particularly vulnerable suits civil damages ante rule absolute immunity required force argument surely undercut majority admission historical record numerous suits president ante even granting bivens cause action become available years since handful suits many frivolous dealt routine manner courts justice department reason think future protection afforded summary judgment procedures adequate protect president currently protect executive officers unfounded litigation indeed given decision today harlow fitzgerald post even reason believe frivolous claims intrude upon president time even judicial procedures found sufficient congress remains free address problem develops finally suggests potential liability frequently distract president public duties ante unless one assumes president makes countless executive decisions required administration government rule much insulate decisions threat liability logic proposition limited president extension however uniformly rejected see butz economou harlow fitzgerald post furthermore instance previously held legal accountability unjustifiable cost availability courts vindicate constitutional statutory wrongs perceived protected one virtues system delegated limited powers argued part concern fashioning absolute immunity rules liability may pervert decisionmaking process particular function undercutting values expect guide decisions except empty generality president maximum ability deal fearlessly impartially duties office ante majority nowhere suggests particular disadvantageous effect specific presidential function caution comes requiring reasonable choices areas may intrude individuals legally protected rights never counted cost iv majority may correct conclusion rule absolute immunity leave nation without sufficient protection misconduct part chief executive ante rule however leave fitzgerald without adequate remedy harms may suffered importantly leave future plaintiffs without remedy regardless substantiality claims remedies finds comfort never designed afford relief individual harms rather designed political safety valves politics history however domain courts courts exist assure individual individual enforceable rights may pursue achieve peaceful redress legitimate grievances find ironic well tragic casually discard role assuring right every individual claim protection laws marbury madison cranch name protecting principle separation powers accordingly dissent course simply hypothetical example see halperin kissinger app aff equally divided ironic decision come time tenth anniversary watergate affair even popular press drawn affair insight character american constitutional system bound profoundly shaken today decision important lesson watergate established president law banality cliche point many americans seem confused time june majority shares confusion majority vigorously protests characterization position ante arguing president remains subject law form impeachment proceedings abandonment rule law result reached manner reaching majority fails apply president principles consistently used determine scope credibility absolute immunity defense preconceived notion inapplicability general rules law president similarly chief justice like majority misses point wholly unconvincing contentions today extend president sort immunity recognized respect members congress judges prosecutors legislative aides none previous cases extended absolute immunity actions within scope official constitutional statutory duties concurring opinion chief justice ante indeed immunity doctrine existed prior today decision officials held liable kind claim put forward fitzgerald personnel decision allegedly made unlawful reasons although decision falls within scope official duties fall within judicial legislative prosecutorial functions absolute immunity attaches chief justice failure grasp difference functional approach absolute immunity previously adopted nature today decision accounts misunderstanding dissent although majority opinion initially claims conclusion based substantially history historical analysis fact plays virtually part analysis follows point agreement concurring opinion chief justice solicitor general relies entirely upon brief filed office petitioners kissinger halperin fact insofar constitution addresses issue presidential liability approach different taken speech debate clause possibility impeachment assures president held accountable branches government actions constitution impeachment bar criminal prosecution debate recorded farrand records federal convention pp hereinafter farrand ibid federalist cooke ed alexander hamilton described impeachable offenses follows nature may peculiar propriety denominated political relate chiefly injuries done immediately society majority use historical record line arguments puts burden respondent demonstrate presidential immunity rather petitioner prove appropriateness defense thus noting doubts framers sufficient prevent adoption impeachment clause majority nevertheless nothing debates suggests expectation president subjected civil damages actions ante course nothing debates suggests expectation president liable civil suits damages either nevertheless debates one element majority cites support conclusion best historical evidence clearly supports presidential immunity upheld ante commentary proposed constitution however consider subject presidential immunity fact subject discussed first major defense constitution published essays constitution published independent gazetteer september tench coxe included following statement description limited power proposed office president person much protected member house representatives may proceeded like man ordinary course law quoted documentary history ratification constitution emphasis original elliot debates federal constitution maclay sketches debate first senate reprint ibid story commentaries constitution ed possible determine whether pinckney madison recorded pinkney objected convention granting power impeachment legislature two charles pinckneys attended convention south carolina see farrand senator pinckney comments recorded annals cong petitioner contends remarks relevant concerned authority congress inquire origin allegedly libelous newspaper article reply brief petitioner although occasion remarks pinckney discuss immunity members congress privilege embodied speech debate clause ur constitution supposes man infallible considers mere men subject passions frailties crimes men generally accordingly provides trial tried leaves members legislature proceedings amenable constituents public opinion annals cong one privileges congress contrasting extended extended president majority cites one additional piece historical evidence letter president jefferson contends demonstrates jefferson believed president intended subject judicial process ante thomas jefferson views relation president judicial process however quite clear majority suggests jefferson took variety positions proper relation executive judicial authority different points career surprising president jefferson argued strongly immunity judicial process particularly confrontation chief justice marshall jefferson views issue became president good deal significance regard significant jefferson second third drafts virginia constitution also proposed separation powers government three separate branches specifically proposed executive subject judicial process shall liable action tho personal restraint private duties wrongs papers thomas jefferson also significant fact jefferson followers tried impeach justice chase one grounds attack refused subpoena president adams trial cooper sedition see corwin president office powers ed finally worth noting even middle debate chief justice marshall power subpoena president burr trial jefferson looked legislative solution confrontation hope however ensuing session legislature chief justice may means provided giving individuals benefit testimony executive functionaries proper cases works thomas jefferson ford ed quoting letter president jefferson george hay district attorney virginia solicitor general fact argues possibility judicial review presidential actions supports claim absolute immunity judicial review serves contain correct unauthorized exercise president powers making private damages actions unnecessary order achieve end brief petitioners kissinger halperin see supra see also justice harlan discussion appropriateness damages remedy order redress violation certain constitutional rights bivens six unknown fed narcotics agents concurring judgment contrary suggestion majority ante suggest must always remedy civil damages every legal wrong marbury madison stands proposition marbury however suggest importance private interests stake within broader perspective political system based rule law functional approach immunity questions previously followed majority today discards represented appropriate reconciliation conflicting interests stake never held public policy conclusions reaches appropriateness absolute immunity particular instances subject reversal congressional action implicitly therefore already rejected constitutionally based argument immunity federal officials surely fact officers primary beneficiaries pronouncements absolute immunity gives support appearance favoritism see virginia consumers union butz economou speculate presidential functions may require absolute immunity clear example instances president participates prosecutorial decisions see cong rec first session congress desirous learning needs postal service inquiring conditions employees surprise found executive order employees give information remarks calder believe high time congress listen appeals men provide way whereby properly present petition members congress redress grievances without fear losing official positions remarks reilly always requested employees consult matters affecting interest believe duty listen respectful appeals complaints remarks evans indeed reason petitioners harlow fitzgerald post argue statutes create private right action designed protect legislative process give one fitzgerald right seek damages brief petitioners indeed impetus passage supp iv imposition gag rules upon testimony civil servants congressional committees see exec order exec order thus adverse action may generally taken civil servants cause promote efficiency service supp iv majority also seems believe function past referred subjective purpose see ante inquiry president motives avoided functional theory read cases way stump sparkman held factors determining whether judge act judicial action entitled absolute immunity relate nature act whether function normally performed judge expectations parties neither factors required analysis purpose judge may carrying particular action similarly butz economou determined certain executive function entitled absolute immunity shared enough characteristics judicial process looked objective qualities subjective purpose majority seems suggest responsibility governmental reorganizations one function ante fail see although conclusions differ majority opinion reflects similar view relationship two sources causes action case believe necessary differentiate analysis statutory constitutional causes action chief justice leaves doubt least reads majority opinion standing broad proposition president absolutely immune constitution write separately underscore presidential immunity spelled today derives mandated constitutional doctrine separation powers concurring opinion chief justice ante contrary suggestion majority mississippi johnson wall carefully reserved question whether may compel president perform ministerial executive functions shall limit inquiry question presented objection without expressing opinion broader issues whether case president may required process perform purely ministerial act positive law may held amenable case otherwise impeachment crime similarly kendall pet also cited majority indicate president never subject judicial process fact implied contrary rejecting argument mandamus sought involved unconstitutional judicial infringement upon executive branch mandamus seek direct control postmaster general discharge official duty partaking respect executive character enforce performance mere ministerial act neither president authority deny control join justice white dissent leaves unanswered unanswerable argument man even president absolutely fully law see lee marbury madison cranch today thought principle foundation national jurisprudence appears understand holding absolute immunity president compelled concerns time expressly leaves open ante possibility president nevertheless may fully subject congressionally created forms liability two concepts seems coexist also write separately express unalleviated concern parties settlement agreement key details disclosed counsel veritable last minute even halperins motion intervene directed attention see ante makes passing mention agreement part opinion case effect settled argument petitioner payment respondent much smaller sum left riding outcome favorable respondent nothing paid petitioner prevailed indeed parties publicly stated amount payment depend upon subsequent proceedings district fact parties essentially agreed regardless ruling proceedings substance occur district surely details agreement known time petition certiorari came certiorari denied escape feeling agreement comes close wager outcome case implications entails havens realty coleman recently appears conveniently decided affords less comfortable support retaining case pertinent question whether case moot whether kind case controversy exercise power discretionary review cf johnson apprised developments therefore dismissed writ improvidently granted seems brushes factor order resolve issue profound consequence otherwise lacking support dismissal however join dissent man country high law officer law may set law defiance impunity officers government highest lowest creatures law bound obey essence civil liberty certainly consists right every individual claim protection laws whenever receives injury one first duties government afford protection great britain king sued respectful form petition never fails comply judgment agreement havens final approved district present case parties made agreement presented district fact preliminary payment havens respondent receive denied certiorari affirmed nothing reversed changed hands regardless subsequent disposition case much smaller sum resting ultimate ruling kind case controversy contemplated art iii constitution