A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf

Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones, which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones, the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity.

Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the president from his official duties are the same in state court as in federal court; thus, the Supreme Court's conclusion that such distraction does not warrant full or temporary immunity in Jones carries over in state court. Second, Judge Schecter distinguishes cases finding that Supremacy Clause concerns warrant limiting the jurisdiction or remedial authority of state courts all involve fear of interference with the official functions of the United States; because Zervos has sued based on Trump's private conduct before he became president, those concerns are not implicated.

In the balance of this post, I want to consider some implications of a subsidiary argument that Judge Schecter makes. As the Jones Court itself did, she takes note of the fact that Congress has granted temporary immunity to members of the US armed forces during their service, so one can infer from Congress's failure to grant similar immunity to the president that it did not intend it. Jones has been on the books for over twenty years. Congress's inaction is thus telling.

But is it really? Given partisan considerations, one could see how, except in periods when one party controls the presidency, the House, and 60 seats in the Senate, there would be no political will to enact a provision granting the president partial immunity--even if an overwhelming majority of elected officials thought it a good idea in general.

Yet there's a pretty simple workaround. Congress could enact a statute conferring temporary immunity on the president, but make its effective date after the next presidential election. That way, members of the party that doesn't control the White House at the moment could vote for the bill without worrying that they are benefiting their political rivals.

Of course, it's possible that the reason Congress hasn't done that is that there is not sufficient support in Congress for temporary presidential immunity, regardless of party affiliation. But we still have the question why we don't see this sort of thing more often in other contexts. Creation of a new federal agency, increases in the size of the federal judiciary, and a host of other measures that might have a clear partisan dimension at any given moment can be enacted with a delay until after one or more intervening elections, so that, if they have bipartisan support in principle, they will not be scuttled based on partisan concerns about who would benefit in the short run.

The absence of this device (so far as I'm aware) is all the more puzzling, because lawmakers know how to delay implementation for other reasons. For example, the Affordable Care Act didn't go into effect immediately, to enable insurers, providers, employers, states, and other affected actors time to plan for its implementation. Meanwhile, the Constitution's 27th Amendment (which was proposed as part of a package with the rest of the Bill of Rights in 1789 but wasn't ratified until 1992) delays implementation of Congressional pay changes until after an intervening election, so that members of Congress will have to face the voters first if they want to increase their pay.

It is possible that I'm simply missing a batch of statutes that have been enacted with delayed implementation so that the enacting legislature will operate behind a veil of ignorance. If so, I would be grateful to any readers who could point me to examples.

Before concluding, I want to address two further points.

(1) Yesterday I was on air discussing the Zervos case on KPCC (the NPR affiliate in Pasadena, CA), along with Profs. Ben Zipursky and Josh Blackman (audio available here). The three of us agreed that, given Jones, Judge Schecter got it right. Prof. Blackman noted at the end of his remarks that he thought that post-Jones experience may call for a change by Congress and that it is clear that Congress could legislate a rule granting the president temporary immunity in federal court but that he has doubts about whether Congress could likewise so legislate for state courts. He also said that he thought I might disagree about his doubts about the state courts, and he was right about that. I do disagree.

Prof. Blackman said that Congress could grant the president temporary immunity in federal court pursuant to its power to control the jurisdiction of the lower federal courts, but noted that Congress lacks such a power with respect to the state courts. That's why he thought I might disagree: my forthcoming Texas Law Review article argues for relatively broad power in Congress to control the jurisdiction of the state courts in sub-constitutional cases. However, I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of federal law that grants service members relief from civil litigation during their service. That law applies in state court and so would a law protecting the president. If Congress has the power to enact such a substantive rule -- as the Court correctly assumed in Jones -- then it could be made to apply in state as well as federal court.

(2) During my remarks on the air, I mentioned that courts don't automatically accept interlocutory appeals, but indicated that there was a decent chance that the NY courts would accept Trump's appeal. In response to a question from the host, I then proceeded to discuss what would happen next if the appeals courts either rejected Trump's interlocutory appeal on the merits or refused to hear it. I may have thereby given the impression that I thought it likely that the NY courts wouldn't hear the interlocutory appeal. In fact I think it very likely they will.

As Prof. Zipursky pointed out in correcting the impression I may have given, the NY courts are considerably friendlier to interlocutory appeals than are the federal courts. Partly that's a matter of the difference in the wording of the respective statutes. Under federal law, interlocutory appeals are mostly discretionary. By contrast, under NYS law, an interlocutory appeal is as of right where, inter alia, it "affects a substantial right." Whether Trump's putative claim to temporary immunity from suit is "a substantial right" is not entirely clear to me, but on reflection I don't think it matters, because one way or another, I think it almost certain that he will seek and obtain an interlocutory appeal. The relative friendliness of NY courts to interlocutory appeals is as much a matter of attitude as it is of the CPLR text. I also think it very likely that Trump will lose on the substance of his interlocutory appeal but that the delay occasioned by it will work to his advantage.

The likelihood of that further delay confirms my earlier-expressed puzzlement about the Zervos lawyers' decision to sue in state rather than federal court, where there would have been no possible exception to Jones. More than 14 months have elapsed since the suit was filed. Likely another year or more will now be spent on the interlocutory appeal. The case could have gone to discovery already in federal court.