Trump v. United States: Is the Outrage Warranted?

On July 1, 2024, the Court issued a highly controversial opinion on one of its most anticipated cases in the docket: Trump v. United States. The ruling, which significantly broadened the scope of presidential immunity, has sparked widespread public backlash, with many arguing that it undermines the principle of executive accountability. While these concerns are well-founded, they overlook the decision’s most flagrant flaw: its lack of constitutional grounding.

The case before the Supreme Court centered on the August 2023 indictment, which charged former President Trump with countless federal crimes related to his efforts to overturn the 2020 presidential election results. These indictments marked an unprecedented legal challenge against a former U.S. president, accusing Trump of conspiring to defraud the United States, obstructing an official proceeding, and undermining voting rights.

At the heart of the case was the question of whether a former president can be criminally prosecuted for actions taken while in office and, if so, under what conditions. The long-winded majority opinion authored by Chief Justice John Roberts established a three-tier framework: absolute immunity for acts within the president’s “conclusive and preclusive” constitutional authority, presumptive immunity for other official acts, and no immunity for unofficial conduct. Thus, this ruling effectively shields former presidents from criminal liability for a broad range of actions taken in their official capacity unless prosecutors can overcome a strong presumption against prosecution.

While Roberts made clear in his opinion that “The President is not above the law,” many fear that the ruling creates a dangerous loophole, allowing presidents to engage in misconduct under the guise of official duties. Critics argue that by granting such sweeping immunity, the Court has made it substantially more difficult to prosecute former presidents for actions that might otherwise be considered criminal, sparking concerns that future presidents could abuse their executive authority without fear of legal consequences after leaving office.

Justice Sonia Sotomayor echoes these concerns in her dissent, warning that Presidents may “feel empowered to violate federal criminal law.” Perhaps her most compelling critique, however, is her argument that the decision lacks a solid constitutional foundation, as the majority fails to ground its expansive interpretation of presidential immunity in the text or history and tradition of the Constitution. The Brookings Institute reinforces this point, asserting that “the Constitution nowhere says that a past president is by virtue of having once held that office immune from prosecution for crimes committed while in office.” If anything, the Constitution suggests the opposite. Article II explicitly states that a president may be subject to criminal prosecution after impeachment and removal, implying that former presidents can be held legally accountable for their actions. So, then, what in the Constitution grants former presidents immunity? The majority offers no clear textual or historical support for this broad protection, instead relying on speculative concerns about the separation of powers.

Moreover, as Sotomayor highlights, the “Framers [of the Constitution] clearly knew how to provide for immunity from prosecution,” implying that they knew how to grant immunity when they intended to do so. Article I, for instance, explicitly grants members of Congress protection from arrest during attendance at sessions and immunity from prosecution for speech and debate in the legislative context. Even this immunity is limited in scope and purpose, narrowly tailored to preserve legislative independence, not to shield lawmakers from accountability. The absence of any comparable constitutional protection for the president strongly suggests that no such immunity was intended. If the Framers had wanted to exempt presidents from criminal prosecution for official acts, they would have done so explicitly. Instead, the Court’s ruling fabricates a new, much more expansive form of immunity unmoored from constitutional text, history, or precedent.

As this ruling stretches the limits of executive authority, one crucial question remains: where will the Court draw the line on presidential power? Though many, including Trump and his administration, took the Trump v. United States ruling as an indication that the Court would continue deferring to the executive, recent cases seem to point to otherwise. For instance, in Department of State v. AIDS Vaccine Advocacy Coalition, the Court refused to grant the Trump administration’s emergency request to block $2 billion in foreign-aid payments, signaling the judiciary’s willingness to check executive power in certain contexts. Ultimately, this decision suggests that the Court’s approach to executive authority is not entirely compliant, leaving open questions about how it will rule on future challenges to presidential actions.

Andrew v. White

On November 20, 2001, Rob Andrew was shot and murdered. His estranged wife, Brenda Andrew, and her new partner, James Pavatt, were quickly framed as suspects in the shooting. Though Pavatt ultimately confessed to the shooting, he denied that Brenda Andrew was involved. However, the State still charged Andrew with capital murder; at the trial, the prosecution drew from extensive evidence that depicted Andrew as sexually provocative and morally depraved. Andrew’s sex life became a central issue in the trial, with prosecutors arguing that her sexual history made her a “bad wife, bad mother, and a bad woman.” Andrew was convicted of murdering her husband and sentenced to death.

Appealing the ruling, Andrew claimed that the prosecution had introduced irrelevant evidence about her sexual history, rendering the guilt and penalty phases of her trial “unfair.” By case precedent in Payne v. Tennessee (1991), Andrew argued that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Citing this reasoning, she contended that evidence in her trial was prejudicial, violating the Due Process Clause. However, the U.S. Court of Appeals for the Tenth Circuit rejected the claim under the assumption that no holding of the Court clearly established a rule that erroneous inclusion of prejudicial evidence could constitute a violation of due process.

Coming before the Supreme Court in January 2024, Andrew, then the only woman on death row in Oklahoma, reappealed for federal habeas relief. To challenge the legality of one’s incarceration through federal habeas relief, the death-sentenced prisoner must show that the state court “unreasonably applied ‘clearly established Federal law, as determined by’ the Court.” In a per curiam decision, the Court vacated and remanded the ruling by the U.S. Court of Appeals of the Tenth Circuit, arguing that Payne established that the Due Process Clause can protect against the use of prejudicial evidence that renders a trial fundamentally unfair. However, by sending the case back to the lower courts, the Court did not rule on whether the precedent of Payne applies to Andrew’s case. As Justice Alito acutely highlights in his concurring opinion, acknowledging that Payne and other case law are sufficient to establish the protections of the Due Process Clause does not constitute an admission that Andrew’s case meets the “high standard” necessary. Future rulings by lower courts will determine if the trial court’s admission of evidence was so prejudicial that Andrew’s trial was fundamentally unfair.

Beyond the Court’s immediate decision, Andrew v. White invites greater debate over the stereotyping of women in the criminal justice system. The prosecution convicted Andrew under the pretense that she did not fit the norms of the ‘ideal’ woman; her clothing was not demure enough, and her behavior was too sexually promiscuous. To impose these rigid gender norms as justification for the death penalty can pose a suffocating threat to any woman who does not adhere with the traditional stereotypes of womanhood. In a legal system that lauds itself on the ideals of impartiality, incorporation of biased stereotypes is “odious…[and] pernicious in the administration of justice.” Andrew v. White marks a potential turning point, as the Court seems to be signaling that the prejudicial evidence attacking women on the basis of their nonconformity to gender norms might pose a fundamental violation to women’s constitutional rights.

On Facebook, Inc. v. Amalgamated Bank

In December 2015, The Guardian revealed that Cambridge Analytica had harvested data from 30 million Facebook users through a personality quiz created by employee Aleksandr Kogan. This data was used to create "psychographic profiles" of Facebook users initially sold to Ted Cruz's presidential campaign and later used by Donald Trump's presidential campaign. Though Cambridge Analytica agreed to delete this data in January 2016, reporters discovered in October that the firm continued using it despite its commitments. The breach remained largely contained until March 2018, when public revelations about Cambridge Analytica's continued data misuse caused Facebook's stock to plummet, harming investors alongside the users whose data was compromised.

Investors brought suit under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, alleging that Facebook materially misled them by characterizing data breaches as hypothetical risks in its 2016 Form 10-K when the company knew Cambridge Analytica had already improperly accessed user data. The case, Facebook v. Amalgamated Bank, was centered around a fundamental question: when does a company's characterization of a risk as hypothetical become misleading because the risk has already materialized? This question tests the boundaries of the statutory prohibition against making "any untrue statement of a material fact" or omitting material facts "necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading." The Ninth Circuit ruled that investors adequately pleaded falsity, reasoning that Facebook's warnings about risks that "could" harm its business directly contradicted what the company knew when it filed its 2016 10-K. The Supreme Court granted certiorari in June 2024 and heard oral arguments in November, but just two weeks later issued a one-line order dismissing the writ as "improvidently granted" — a rare procedural move essentially admitting the Court should not have taken the case in the first place.

The Supreme Court's reticence to rule on the case became apparent during oral argument, where the Justices struggled to pinpoint the exact legal issue at stake. Facebook had portrayed the matter as a question of whether risk disclosures must include past incidents — even when they present "no known risk of ongoing or future business harm." Rather than focusing on the circuit split that Facebook emphasized in its petition for certiorari, the panel instead explored a series of hypotheticals to determine when conditional statements about future risks — if X then Y — suggest that X has not yet occurred. Justice Thomas suggested that a reasonable person would infer from Facebook's risk warnings that no data breaches had previously occurred, while Justices Sotomayor and Jackson likened Facebook's disclosures to a realtor warning about future crime risks without mentioning recent neighborhood burglaries. Even Chief Justice Roberts and Justice Kavanaugh, who seemed more inclined to support Facebook's position, found it challenging to establish a clear standard for when omitting past events renders a risk disclosure misleading. The Justices' overall uncertainty seems to have contributed to their conclusion that the case was a poor vehicle for resolving the purported circuit split that Facebook had highlighted in its petition for certiorari.

The court’s dismissal of its own certiorari reflects a guiding principle of securities law: context matters in determining whether statements are materially misleading. By declining to craft a bright-line rule, the Court effectively endorsed the case-by-case approach articulated in the Ninth Circuit's opinion, which aligned with In re Alphabet Securities Litigation in recognizing that "risk disclosures that speak entirely of as-yet-unrealized risks and contingencies and do not alert the reader that some of these risks may already have come to fruition can mislead reasonable investors." This approach requires courts to examine each statement in its full context, considering what a reasonable investor would infer from both what was said and what was omitted. The practical implication for public companies is that generic forward-looking risk factor language may constitute securities fraud when the company possesses specific internal knowledge contradicting these characterizations, particularly when those risks have already begun to materialize.

The Court's reluctance to wade into this dispute also reflects concerns about the role of the judicial branch in securities regulation. Justice Kavanaugh explicitly questioned why "the judiciary [should] walk the plank on this [. . .] when the SEC could do it," noting that “[t]he SEC knows how to write regulations that require disclosure of past events.” This judicial modesty also appeared in the Roberts court’ approach to NVIDIA Corp. et al. v. E. Ohman J:or Fonder AB et al.: like the Facebook case, the Courts initially granted certiorari before dismissing it as improvidently granted in December 2024. Ultimately, the Court left it to lower courts — and regulators — to decide when forward-looking disclosures become materially misleading.

Salesmen vs. Overtime: Preserving the Integrity of the FLSA

The Fair Labor Standards Act (FLSA) was enacted in 1938 under President Franklin D. Roosevelt as part of the New Deal to protect workers from exploitative labor practices. It established a federal minimum wage, required overtime pay for employees working more than 40 hours per week, and imposed child labor restrictions. Over time, the law has been amended to expand protections and adjust wage standards. However, the FLSA also includes several exemptions, meaning certain workers are not entitled to overtime pay. Among them are bona fide executives, agricultural workers, and outside salesmen—employees who primarily work away from their employer’s place of business. The recent Supreme Court ruling in EMD Sales, Inc. v. Carrera (2025) reaffirms this important exemption and ensures that the legal standard for classification remains consistent and reasonable.

In this case, EMD, a food distribution company, was sued by its sales representatives for failing to provide overtime pay, arguing they were misclassified under the FLSA. EMD contended that its sales representatives were outside salesmen and, therefore, exempt from overtime requirements. The legal question revolved around which standard of proof employers must meet to prove an exemption: a standard of clear and convincing evidence (meaning that the evidence leads to a firm belief in the allegations) or a standard of preponderance of the evidence (meaning that a claim is more likely true than not, requiring a much lower burden of proof). In a unanimous decision, the Supreme Court ruled that the preponderance of the evidence standard applies when an employer claims an FLSA exemption. In the opinion, delivered by Associate Justice Brett Kavanaugh, the Court reasoned that 1) the FLSA does not specify a heightened burden of proof; 2) the default standard in civil litigation is preponderance of the evidence; and 3) no constitutional rights or unusual coercive actions necessitate a stricter standard. Thus, the case was remanded for reconsideration under the correct legal standard.

Before this ruling, courts were split on the level of proof required for employers to classify workers as exempt from FLSA protections. The Fourth Circuit’s higher standard made it harder for employers to claim exemptions. The preponderance of the evidence standard, used by six other circuits, aligns with broader civil litigation practices, ensuring fairness and consistency. By ruling on the lower standard, the Supreme Court brings much needed uniformity across jurisdictions, making it easier for businesses to operate without excessive legal hurdles.

This decision reinforces that outside salesmen operate differently from traditional hourly employees. A precedent for this distinction was set in Christopher v. SmithKline Beecham Corp. (2012), where the Supreme Court ruled that pharmaceutical sales representatives qualify as outside salesmen under the FLSA and are therefore exempt from overtime pay. The Court emphasized that these employees were compensated primarily through commissions, exercised a high degree of autonomy, and performed work consistent with the traditional definition of sales. This ruling aligns with EMD Sales, Inc. v. Carrera by reaffirming that outside salesmen are distinct from hourly workers.

Unlike hourly workers, salesmen typically receive performance-based compensation such as commissions and bonuses, which often far exceed what they would earn under an hourly wage structure. Since the nature of their work is independent, flexible, and results-driven, they are not subject to the same protections as other workers. So while the FLSA’s exemption for outside salespeople may at first seem like a loophole, it is actually a necessary distinction that acknowledges the unique compensation structures and responsibilities of these roles.

This ruling preserves the original intent of the FLSA by maintaining a balanced approach to worker classification. Ensuring that sales representatives remain exempt from overtime, recognizes their earning potential and rewards their performance rather than hours worked. If commissioned salespeople were subjected to overtime requirements, the industry’s compensation model would be completely disrupted and would result in unintended consequences such as lower base salaries or reduced commission structures.

The FLSA protections affect over 140 million workers in the US, making it crucial to uphold a fair and predictable framework that benefits both employers and employees. By affirming the preponderance of the evidence standard, the Supreme Court’s decision upholds a fair and pragmatic interpretation of the FLSA. This ruling does not diminish worker protections but rather reinforces a system that has functioned effectively for decades, allowing businesses and employees alike to thrive under established compensation models. As the labor market evolves, maintaining clear and consistent standards is essential for ensuring economic stability and continued opportunities for workers in commission-based roles.