On Tuesday, Mike Dorf and I were guests on Air Talk to discuss Zervos v. Trump. Mike and I agreed that the defamation action could be heard in state court while the President is in office–nothing in the supremacy clause prohibits such a suit. We also agreed that Congress could pass a statute that would give the President temporary immunity in federal court. Through its supervisory power over the inferior courts, Congress can add or withdraw jurisdiction. (I will leave for another day the limitations suggested by McCardle, which were discussed in Patchak v. Zinke). Mike and I, however, disagreed on a third point: whether Congress could pass a statute that would give the President temporary immunity in state court. Mike addressed this issue on his blog:

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.

Consider a hypothetical: Melania Trump files for divorce against President Trump, and seeks to conduct discovery into his alleged adulterous relationships. Congress enacts a statute granting the President temporary immunity from any civil suits (including divorce actions) in state court. Mike writes, “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.” But Congress would not have the power to enact such a substantive rule. I discussed this question in my 2016 article, State Judicial Sovereignty:

Second, state jurisdictional sovereignty, explained the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Congress would have, in almost all cases, the power to preempt state jurisdictional statutes. Though, the Court’s recent precedents concerning our system of dual sovereignty place a direct limit on this power. Specifically, if Congress attempts to divest state courts of a jurisdiction long associated with the state police power—domestic law, for example—the Necessary and Proper Clause may not afford such a “great substantive and independent power.”

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Let’s consider another thought experiment. Imagine that Congress enacted a new wide-ranging federal domestic law statute that would preempt various aspects of state family law. Under the holding of NFIB, this intrusion into matters traditionally within the state police power, even if necessary to execute the new federal law, would almost certainly not be proper. (Arguably this reasoning offers another ground to invalidate the Defense of Marriage Act.)

This same analysis applies whether Congress is preempting a state jurisdictional statute, or preempting a state substantive law. In either case, Congress is supplanting a state’s ability to allow certain wrongs to be righted. Does it have the enumerated power to take such an action? I fleshed this scenario out later in the paper:

In an alternate scenario, the federal act divests all existing state courts of their subject matter jurisdiction of family law matters, brought under federal law. Congress does not deem the state courts an effective forum to apply these new family laws, even though the state jurisdiction- al statute confers general jurisdiction. Further, Congress wants to avoid conflicting and contradictory rulings on matter of domestic affairs. This is separate from the issue of whether the federal act preempts the state law, so assume there is no preemption. Could Congress shrink the jurisdiction of the state courts? In effect, this would nullify the existing state family laws, as no one could ever litigate under them in state court. Consistent with the Court’s longstanding precedents, Congress would lack the pow- er to either enlarge or contract a state court’s jurisdiction, and this act would be unconstitutional. But it would be unconstitutional for infringing of a state’s jurisdictional sovereignty.

There is an additional problem with Congress enacting such a statute–if the only forum to bring a divorce action is state court, Congress would be denying Melania the only forum to bring her suit. Such a law would likely violate the Due Process of Law–especially if it forces her to remain married to Donald, where New York law would otherwise permit a divorce and a division of assets.

Congress can control the federal courts as it sees fit, but it lacks the power to divest the state courts of jurisdiction or authority over matters that are not delegated to Congress, but are reserved to the states, and the people.

This post only demonstrates that there are two types of limitations on Congress’s ability to grant the President temporary immunity in state court: the doctrine of enumerated powers imposes negative limitations and the Fifth Amendment’s due process clause imposes positive limitations. A more narrowly tailored immunity statute could pass constitutional muster, but this power is not, and cannot be plenary.