How do legal scholars propose Congress could respond to narrow the scope of presidential immunity?
Executive summary
Legal scholars and advocates propose a mix of constitutional amendments, targeted statutes and jurisdictional maneuvers to blunt a recent broad reading of presidential immunity, arguing Congress can reclaim regulatory space by clarifying criminal exposure for official acts, narrowing doctrines courts use to shield presidents, and using Article III’s exceptions clause to limit appellate review—but each proposal carries political and constitutional trade-offs [1] [2] [3] [4].
1. Constitutional amendment: erase immunity at the source
A direct route embraced by members of Congress and highlighted by advocacy groups is a constitutional amendment that would categorically bar immunity for the President and other officers, expressly subjecting them to criminal prosecution for violations of federal or state law and forbidding self-pardons; lawmakers including Rep. Joe Morelle, Rep. John Larson and Rep. Terri Sewell have sponsored or endorsed such amendments as the clearest way to reverse a Supreme Court decision seen as creating blanket protections [1] [5] [6] [7].
2. Statutory fixes: redefine the “official acts” line and tolling rules
Scholars urge Congress to write narrow statutes that define which presidential conduct is criminally covered and to rebut presumptive immunity through clear textual signals—examples include passing laws clarifying that statutes reach official presidential conduct or extending tolling rules so prosecutions can proceed without indefinite delay; commentators note that statutory interpretation played a pivotal role in the Court’s discussion and that Congress can use clear-statement devices to overcome doctrines courts use to infer immunity [2] [8] [4].
3. The No Kings Act and jurisdictional strategies: limit the Court’s final word
A more aggressive, constitutional-law approach circulating in Congress would invoke the Article III “exceptions clause” to bar the Supreme Court from hearing appeals challenging a congressional statute that displaces immunity, a tactic embodied in proposals like the No Kings Act which would also require lower-court adjudication of such statutes and try to insulate them from immediate Supreme Court reversal—scholars caution this is legally novel and politically fraught but see it as one lever to prevent the high court from re-expanding immunity [3] [9].
4. Package of accountability statutes: restore checks through ordinary lawmaking
Beyond immunity-specific measures, analysts recommend a package of reforms—automatic expiration of national emergency declarations after 30 days without congressional approval, strengthening contempt and oversight remedies, and other guardrails—to reduce arenas where presidential “official acts” could be used to evade criminal accountability; the Brennan Center and other policy outfits frame these as pragmatic ways Congress can shrink the institutional space immunity covers [4] [10].
5. Political calculus, separation-of-powers limits, and counterarguments
Law professors emphasize trade-offs: a constitutional amendment is politically high-cost but definitive, statutory fixes are narrower and more plausible but may be vulnerable to judicial invalidation, and jurisdiction-stripping raises separation-of-powers fights that courts may resist; defenders of broader immunity argue such protections preserve presidential autonomy and national security, while critics contend the Court’s decision invites lawlessness—scholars across venues therefore press for multi-pronged responses combining textually clear statutes, institutional reforms, and, where politically possible, constitutional change [2] [4] [10].
Conclusion: a menu, not a miracle
The scholarly consensus reflected in policy centers, law reviews and advocacy groups is that Congress has multiple tools to narrow presidential immunity—amendment, clear-statement statutes, jurisdictional limits and accountability legislation—but none is cost-free, and each will trigger litigation and political contestation that may ultimately define how much the presidency remains beyond ordinary criminal process [1] [3] [4] [9].