NIXON v. FITZGERALD 457 U.S. 731 (1982) HARLOW v. FITZGERALD 457 U.S. 800 (1982)

In these cases the Supreme Court significantly expanded the scope of executive immunity in actions for damages brought by persons injured by official action. Fitzgerald sued former President richard m. nixon and two of his aides, alleging that he had been dismissed from an Air Force job in retaliation for revealing to a congressional committee a two billion dollar cost overrun for a transport aircraft.

inNixon the Court held, 5–4, that the President is absolutely immune from civil damages—not merely for the performance of particular functions but for all acts within the "outer perimeter" of his official duties. Justice lewis f. powell, for the majority, rested his decision not on the text of the Constitution but on "the constitutional tradition of the separation of powers." Unlike other executive officers, who have only a qualified immunity from damages actions, the President occupies a unique place in the government. He must be able to act without fear of intrusive inquiries into his motives. The dissenters agreed that some of the President's functions should be clothed in absolute immunity, but argued that a qualified immunity from suit was sufficient in most cases to protect presidential independence.

inHarlow the Court, 8–1, rejected the aides' claim of absolute immunity, but broadened the scope of qualified executive immunity. Under previous decisions, this immunity was lost when the official negligently violated "clearly established" rights or acted with malicious intention to deprive constitutional rights or to cause harm. The Court here eliminated the "malicious intention" test for losing the immunity. A great many actions for damages against executive officials are based on claims of right that are not "clearly established." Harlow forbids damages in such a case even though the official acts with malice.

Kenneth L. Karst
(1986)