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There is an absolute abundance of situations that are just in that category of "government official does something, courts later rule it unconstitutional (or even just not statutorily supported)" that would completely change the dynamics of how government operates if those officials are then subject to criminal penalties. You can go to the blockbusters like NSA/CIA with intelligence stuff or the detention/rendition/interrogation stuff, but even just stuff like DAPA, student loan forgiveness, the non-appropriated disbursements of funds to health insurance companies, et cetera all the way down the line.
Frankly, this dovetails pretty nicely with all the stuff about Chevron, too. Like, not the actual issue in Chevron about how deference should work, but there are tons of administrative state hypos, where I can't imagine the people who are pro-Chevron are going to accept the possibility of criminal prosecution. If the head of an agency approves an action that is later determined by the courts to be unconstitutional or not supported by statute (which was even possible under Chevron if the statute wasn't ambiguous or the agency interpretation was far out enough), are all those folks going to be clamoring for them to be subject to criminal penalties? Say, the head of OSHA can be criminally prosecuted for the COVID vaccine mandate? Examples are plentiful, almost certainly at every agency in existence.
The result would be that all government actors would have to be extremely hyper-cautious about everything they do, more extremely than most people can probably even imagine. Like you say, a few Libertarians would be cool with making them have to be extremely hyper-cautious (because it gets closer to a world where they do literally nothing), but almost no one else is. Even judges have absolute immunity for their official acts, for much the same reason. There was basically zero chance going into this case that the Court was going to find that the President has zero immunity whatsoever for absolutely all official acts; the only real questions were how much immunity (absolute, qualified, some other construct?) and where the lines were drawn. Official v. nonofficial was one obvious place to draw at least one line, and the three-part division they settled on is perhaps not perfect, but it's at least in the right ballpark. It's definitely approximately along the lines of what I was expecting going in.
I don't think you can retroactively prosecute anyone for something that wasn't a crime at the time they committed it, right? I can't pass a law today making posting on The Motte illegal and then charge you for posting yesterday.
Also, in this decision reversing Chevron, don't they explicitly say something like "This doesn't make all previous decisions that relied on Chevron reversible." At least there should be some general protection against these kinds of cascades of retroactive illegality.
Further, I would add that I don't think anyone could argue that -- generally -- an admin agency acting under Chevron was committing crimes by interpreting the laws as directed; rather they were operating under an error and without malice.
Many many agency actions are found to simply be not legal under existing law. You'll always have a variety of background laws that can easily be appealed to as the existing statute saying that it's illegal. @benmmurphy gave the example of false imprisonment. Could use things like misappropriation of government funds, etc. There are tons of existing examples, on the books right now, that could be used.
Right, but this is getting into the weeds of Chevron and is really beside the point. I'd say it's basically just not relevant.
Many many times, being in error or not having malice is not a defense. But you know what you're really doing here? You're reinventing qualified immunity. Kinda funny, really. Like I said, there was always going to be some form of immunity; the question was always where the bounds were on that immunity.
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Great point there.
People who have recently come to support Chevron deference should be happy with a precedent that holds that Executive Branch actors are generally safe from prosecution for actions they take in their official capacity, even if found to be illegal/unconstitutional later.
If the Court had done the 'opposite,' that is, left Chevron in place but decided that immunity just wasn't a thing for the President and his appointees, then the new front that would potentially open up would be states seeking to sue and arrest, personally, the heads of various agencies for actions taken against their citizens. Okay, that could run afoul of the Supremacy Clause in most cases, but once those people leave office then they would have to be consistently concerned that they'd be brought in to answer for some order they gave during their tenure.
Hell, there's no reason why DOJ couldn't prosecute the officials for taking ultra vires action under color of federal authority itself, without relying on the states at all. Seems like a great way for a new president to get around civil service protections and clean house.
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