American History

COURTING CONTROVERSY

Can a litigant haul a president of the United States into court? The Constitution is silent, though the Framers did consider the issue, giving members of Congress protection from prosecution for anything they say. But even without express immunity, for 78 years after the Constitution took effect nobody tried to sue a sitting president.

Not until 1867, in the Civil War’s bitter aftermath, did the U.S. Supreme Court face the issue. In , the justices gave the president a substantial shield against legal actions. However, the jurists strongly suggested that under limited circumstances a party could sue the country’s leader. The opinion in that case remains central to continuing debates regarding presidents’ legal vulnerability. But also remains, University of Texas law professor Steve Vladeck wrote recently, “one of the least-well-understood of [the Supreme Court’s] major separation-of-powers decisions.”

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