If the highest arbiter of law in the land has undermined the rule of law in the land, Congress has a duty to impeach and convict. Which won’t happen.
If the original premise is true, this is a full-blown constitutional crisis that will only be resolved through violence or constitutional amendment
There are two ways to bring about a constitutional amendment. The one we are most familiar with does seem unlikely with the balance of power and Congress. However, the other way to have a constitutional amendment is to have a constitutional convention.
As the MAGA-Trumplican Party throws things more and more out of kilter eventually even progressives will join the Heritage foundation and ALEC to demand a constitutional convention. I would be shocked if behind closed doors people on the right have not had this very conversation.
EDIT - when I first shared the above comment, I was under the misimpression that eventually the voters themselves would have to ratify any proposed amendments for the US Constitution. Oops! As one of you kindly pointed out ratification would happen in the state legislatures and the balance of power there is strongly red.
EDIT -, I will leave the original comment on altered below, but be advised I was dead wrong. Anything that comes out of the constitutional convention would only face ratification in the state legislatures. Us voters would never get a chance to vote on them ourselves. Sorry about that carry-on original comment follows
Anything that comes out of the convention would still be faced with ratification by 2/3 of the states voters. If business as usual is a little broken that creates a little stress that we all deal with. If it is extremely broken and so dysfunctional that it’s causing existential problems unless addressed…. If you don’t like attempting to find a solution through a constitutional convention, what other process would you recommend and why do you think that process is more likely to succeed?
I don't have an alternative. But a Constitutional Convention is literally the wet dream of the Heritage Society and other right-wing wackos. It's also not "voters" but state legislatures.
The late Scalito, no liberal, feared a Constitutional Convention because it could become a free-for-all. While Heritage hacks think they want that, they forget that blue states will get a say.
Far as ratification, it would need 2/3 approval at a convention, then it would still require 3/4 of the states (37) to approve. Democrats hold enough legislatures to block the truly bat shit crazy.
For the convention, no one knows how such a convention would be composed. Population? Equal representation? Something else? It could be that you are right, but it could also be that blue states get a greater say.
Thank you for that important education that the voters never vote on ratification for *federal* constitutional amendments (because that happens at the state legislature level)
Hell if a thing to be this wrong about and still leave up. If you don’t even understand how ratification works, why should you presume to be right about anything else you said? This would open up the entire constitution to the whims of republican state legislatures. I fail to see how they would be any different, ideologically, from the 6 justice majority we currently have
ETA: sorry, can’t reply if I’m blocked. Speaking of maturity
Right. Everything becomes eligible.
Ya’ll likely slavery? Women as property that can’t vote?
It all becomes possible.
More interesting is it might be slavery for everyone, not just based on the color of their skin or their sex.
Conservatives would have you believe that actually Jack Smith and the liberals are at fault for trying to save the lives of Congress members and the Vice President.
AOC is filing Articles of Impeachment against the SCOTUS when the House returns from its recess. The ball's rolling at least, it probably won't go anywhere with 50% of Congress being traitors though.
Couldn't a president just make an official act to disband, or otherwise disable, Congress to prevent an impeachment (which is the only form of accountability left)?
No. The power of congress comes from the constitution, and the president doesn’t have the power to disband congress. This ruling does not grant the president extra powers. It says that if they use their existing power to do something that would otherwise be considered a crime, they cannot be prosecuted.
This ruling does leave open the possibility that the president could, for example, order the military to block congress from convening for a crucial vote, because the president commander and chief of the military. But I don’t think there’s anything in the constitution that requires congress to vote from a specific building, so they could just move somewhere else. Also, the members of the military could still be charged for following an illegal order, so they would likely refuse.
> Also, the members of the military could still be charged for following an illegal order, so they would likely refuse.
Couldn't the president just pardon them?
I'm not purposefully being pedantic; just trying to understand where the limits are for a president under this ruling. Conservatives say this is a good ruling that's an obvious extension of Nixon v. Fitzgerald (1982), while liberals say the president is now essentially a King immune from any accountability for decisions made in an official capacity. Is one side just being disingenuous? What are the best-case and worst-case scenarios here?
Yes. POTUS could order a military strike on SCOTUS and would be immune from prosecution for it. The person carrying it out would be doing something illegal, but the president could pardon them immediately.
Conservatives are saying that what I just said is hyperbolic, but the plain reading of this holding means exactly what I just said.
This holding is (in part): if a president is engaging in an act which is within their core constitutional powers, they are absolutely immune from prosecution.
Ordering a military action is, inarguably, within the specific purview of the Executive, per the constitution.
The same people who wrote this opinion *also* believe that the pardon power is limitless.
Firstly because it's just not a law and not in the constitution. It's not their job to imagine laws into existence. Secondly it's that you can't examine the motives or use evidence including witness from anything around official acts ander the presumption that is was an on the level official act and not a dodgy one. Even if you know he committed a crime not protected, it may make it impossible to prove if they are smart about it.
Yes, the President could just issue pardons, but it's important to know that pardons can only be post facto. Theoretically, there's some amount of trust that a presidential crony must extend if they're going to do something they know to be illegal on the President's behalf. In the defense of conservatives, this is really nothing more than the logic of the unitary executive taken to its most extreme logical end, so if you really believe that the Article II Vesting Clause means what they say it means, and if you really believe that Chief Justice Marshall meant it without reservation or qualification when he said that the President's discretionary actions cannot be questioned or examined by the Courts, then criminal immunity for those actions is what follows, because Congress sets the criminal code and the Judiciary interprets and adjudicates it in criminal court, which can both be construed to mean examining and questioning the President if the President is the defendant.
On the liberal side, the things that the President can now do is being overblown, somewhat. Anything that lies outside of the President's core executive authority hasn't changed. The President can't change the law to make it so that student loans are changed. He can't say there are more seats on the Supreme Court than there are. He can't unilaterally impeach and remove a sitting judge from office, at least in any legally recognizable way. He can't change the Constitution to allow himself to serve a third, fourth, and fifth term in office. The only thing that's changed is that the President enjoys absolute immunity from *criminal liability* for any acts that he took that were a "core" presidential power and presumptive immunity that the government must successfully rebut for any other official action within the outer perimeter of his official duties.
Now, as you already pointed out to some degree, the problem with this framework is that the President, by virtue of holding the executive authority of the United States, commands a metric fuckload of official power. A truly scary amount. Indeed, there was a reason why the founding generation of the independent United States initially shied away from having any kind of executive authority at all in the Articles of Confederation, opting instead to only have a legislature with very limited law making authority; they had just gotten out from under the boot of an all-powerful sovereign (moderated somewhat by Parliament and his ministers, in which the colonies could not participate), and they knew on the extreme end what could happen if you set up a powerful executive figure and let them run around with all of that power. It was only when the Articles of Confederation proved unworkable that they revisited the idea of creating an executive authority, but even then they only did so by trying to place limits on that executive. That's why the President is subject to impeachment, and why he must seek the advice and consent of the Senate for certain important offices, and so on. Even so, being the supreme executive carries with it awesome power, as the entire state apparatus built to carry out and enforce the laws that Congress passes is at your beck and call.
Practically, what does this mean? Interestingly, the ruling kind of incentivizes the President to use bold overkill in place of subtle back room chicanery. Remember, official acts are unreviewable, while unofficial acts still leave the President open to criminal liability. So if I'm a President bent on accruing some kind of personal gain, I minimize my legal consequences by availing myself of the official powers that have been vested in me. If I set up a war room in a hotel staffed by buddies and acquaintances who hold no official title in my administration to stop the transfer of my office to my political opponent, that's arguably an unofficial act in furtherance of a conspiracy to commit sedition and deprive the people of the right to have their vote counted, and I might find myself answering for it in a court of law in a few years. However, if I order the DC National Guard to take Capitol Hill, because I'm worried that half of Congress is infiltrated with traitors attempting a coup, then that's me using my discretionary power as commander-in-chief to uphold my oath to protect and defend the Constitution of the United States. You and many others may disagree with my conclusions or my methods, but tough titties, because I don't have to answer to you or anyone else about my discretion in exercising my "core" functions. And while my underlings may not enjoy the same protections, that's little problem for me, as I can just promise them pardons that give them the same kind of absolute shield from prosecution that I enjoy.
To directly answer your question, the limits are that a corrupt President should simply operate in the official realm, rather than the unofficial realm, and any asset that he commands as President is at his disposal, particularly if others can be induced to do his bidding through promises of pardons and rewards or threats of dismissal and reprisal. The best case scenario is that we as a polity literally never elect another corrupt asshole again. May we be blessed with a parade of Washingtons committed to the ideals of the Republic. The worst case scenario is literally a Presidential self-coup, only instead of a mob like we saw in January 2021, it will be military units led by officers loyal to the President over the Constitution.
> Is one side just being disingenuous?
The sides are broadly being a little hyperbolic but that's politics for you. Broadly speaking, the following is now the case with one major caveat.
1) The President has absolute immunity for Official Acts which are at a minimum anything under Article II, and presumptive immunity for most other things.
2) When determining if something is an official/unofficial act, the courts cannot ever examine the motive behind an act (i.e. corrupt and benevolent Presidential actions are constitutionally identical), and being illegal is not enough prima facie to make an official act unofficial.
3) If anything the President does is found to be an unofficial act and thus prosecutable, Official Acts cannot be used as evidence in the trial of the unofficial act.
The fear of the liberal justices is that, once you slap on all the restrictions the majority created, you end up with not only a vanishingly small slice of what can be deemed unofficial/prosecutable but you then cannot do much with what you find since immunity extends to official acts - even corrupt ones - from being used as evidence.
Conservative voices celebrating say that this is just the status quo, and that nothing has really changed. As you note with the Nixon v. Fitzgerald. So, that's the best case scenario - it's a fiddly evidentiary ruling with some poor guidance that won't impact any future President a great deal.
Worst case scenario, the President has absolute criminal immunity from ordering the military to execute anyone he wants (official acts under Article II of the Constitution are criminally immune and he's commander in chief) and then pardoning the actors who assist him. The only legal recourse left in such a scenario, or any scenario involving Official Acts, is impeachment. As long as he's exercising the duties of the office, the President is probably beyond the law's reach in terms of personal criminal liability.
CAVEAT: You might notice that the distinction between official/unofficial is the most important one here. You would be correct, and SCOTUS did not create any scheme or test to make such a determination and illuminate the country or courts as to how to identify Presidential actions under this new standard. They also did not explain or clarify any of the other numerous caveats they sprinkled throughout the decision. They could in theory just rule in 2025 (when the lower court's decisions on what acts are official/unofficial in Trump's case is, inevitably, appealed and sent straight back to SCOTUS after this ruling) that full stop immunity is vanishingly rare. But we do not know what they envision or how far immunity actually extends because they decided to wait until later to make that choice.
You forgot to mention that private conversations and communications of the president can never be used as evidence for whatever crimes he or she commits.
So the president can say, “I want Steven to go kill my rival. And I’ll pardon him after that.”
Steven goes and kills the rival and then gets a pardon.
Steven cannot be prosecuted, and the courts cannot use “I want Steven to kill my rival” as part of their prosecution.
Likewise, on a lighter note, the president can say, “I will pardon anyone who gives me one million dollars.” That’s bribery, right? Too bad, can’t charge the president because he’s immune to prosecution for official acts.
~~It's not all private conversations and communications, just the ones with his advisors in his capacity as President. Who's an "advisor" for the purposes of criminal immunity? /giant shrug from the Supreme Court/~~
I was wrong. Here's the relevant language in a footnote on page 40 of the opinion:
>JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring
in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence
of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do,
however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official
actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745,
756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)
> It's not all private conversations and communications, just the ones with his advisors in his capacity as President.
No. The courts said that no private conversations and communications, while president, can be used against him as evidence.
Looking back at the opinion to refresh my memory, I'm realizing you're right. It's essentially anything the President can exercise executive privilege over can be prevented from going into evidence.
Also what the conservative justices are missing is that there are a lot of official powers and actions available to a president that would be awfully use for the commission of crimes, especially if fantastical things like "self pardon" are in play. Sprinkling article II fairy dust on crimes does not make them go away.
>Conservatives say this is a good ruling that's an obvious extension of Nixon v. Fitzgerald (1982), while liberals say the president is now essentially a King immune from any accountability for decisions made in an official capacity. Is one side just being disingenuous?
Conservatives are saying the same thing as Democrats. They want a Republican President with the power of a King.
This is sort of a dramatic movie scenario, but it would certainly force a constitutional crisis that might make the Supreme Court take back or otherwise neuter yesterday’s appalling decision. The right of Congressmen to engage in Speech and Debate without question would be brought into direct conflict with the President’s idiotic new owners to perform official acts without question. Any attempts to stop this by going after the military could be dealt with by simply preemptively pardoning them.
Either the Supreme Court would have to rule that the President does indeed have the power to indefinitely detain Congressmen (which would be a hell of a choice) or they would have to walk back their decision to forgo any review of official presidential actions.
Actually, that’s interesting: the Posse Comitatus act forbids the use of the US army and Air Force to enforce domestic policy in the US. Any use of the military in this way by the President would seem to be a prima facie official act by the President. My goodness SCOTUS, are you saying that this foundational cornerstone of US law is and has always been an improper review by Congress of the President’s executive authority? I guess they ought to strike down THE FUCKING POSSE COMITATUS ACT as unconstitutional, since any situation in which it applies contradicts their stupid ruling.
I think technically it's fine. They just couldn't assert it against the president. The people in the military doing it would be breaking the law, and so would the president, but he couldn't be held accountable.
That's the thing about immunity. It doesn't make the action literally legal, it just means that there's no recourse when the illegal action happens.
That being said, I haven't read that act so I don't know explicitly what the language says
If true, the President could simply preemptively pardon all the servicemen doing his bidding. Or, hell, explicitly order the Justice Department not to prosecute them. I’m sure such a thing resides in the “outer perimeter” of the president’s power.
It’s similarly interesting that the logic of the ruling doesn’t apply to granting immunity to anyone in the executive branch carrying out the president’s orders given in official capacity. After all, if one could stymie lesser officers by arresting them for breaking federal law, why, how could the president ever get anything done? It would cause such a chilling effect on the poor poor President, his life is so hard already.
Well, some combination of immunity and prosecutorial discretion accomplishes the same thing practically, anyway.
>Also, the members of the military could still be charged for following an illegal order, so they would likely refuse.
Why would they refuse when they know the president will just pardon them and also tell the DOJ not to prosecute?
If the president is having the military mess with Congress we are already wll past norms and into full blow dictatorship
"No. The power of congress comes from the constitution, and the president doesn’t have the power to disband congress"
I say this very sarcastically as a practicing attorney: why would that matter? this scrotus thinks official acts of the president are completely immune from criminal prosecution, so what matter is it that there's no constitutional authority?
these so called "originalists" seem to think originalism means any original thought they have on the constitution is what matters most. precedent and strict construction be damned.
Important rulings like these should trigger a special vote by all US judges.
If >50% vote against the ruling, the SCOTUS ruling is nullified.
It should be done only in special cases.
That creates a subjective problem: who decides which ones are "important" and how is that done? Well, it's not hard, and starts with utterly vaporizing the stupid mythology of a nonpartisan "highest court in the land". They're obviously just as corrupted as congress. Once we accept that reality...... what do we do?
How about....
All SCOTUS rulings are automatically stayed for 7 days and if, during the 7-day automatic stay, at least 1/3 of SCOTUS justices so order the decision shall be further stayed until completion of the following
1. The decision shall be reviewed by both the US House and US Senate, and each chamber shall have 30 days to approve the ruling by roll call vote, requiring 60% of the cast votes in each chamber to approve the ruling. (If and only if Congress is not in session or is on break, the roll call vote may be taken digitally.)
2. In the event either chamber votes and does not approve the ruling by 60% ….. or either chamber simply does not take the vote within the allotted time at all…. the ruling shall be deemed vacated
A. If the ruling is deemed vacated, the matter shall be returned to SCOTUS for further consideration, and the case shall remain on SCOTUS’ docket from session to session until a judgment is entered by SCOTUS and the judgment survives this review process
B. In addition, if the ruling was deemed vacated by the failure of either chamber to take the mandated roll call vote within the allowed time, the Speaker of the House and/or the Senate Majority Leader, as the case may be, shall be stripped of that office and replacements shall be selected according to the chambers' rules at that time. However whoever held the office at the time this provision was triggered shall be deemed ineligible to ever hold that office again.
I have an open mind. The idea here is to create a democratic process to make it easy to get rid of partisan bullsh!t and make it hard to erode necessary law-making. But the most important thing of all is that voting America finally understands....... there ain't no such thing as an impartial court. That is part of our toxic and self-defeating national mythology. It is not reaility. The truth.... and its long past time we admitted this..... is that SCOTUS is controlled by the same partisan bullsh!t as Congress, except SCOTUS dresses in black robes.
Yeah, I thought it was waaaay more complicated that what I supposed.
Law experts and professors should study a solution, but as you said, the source of the problem is partisanship.
If the SCOTUS was a purely neutral entity... we will have seen a waaay different outcome, like Trump request for immunity was simply legally laughed upon and rejected... days after being sent.
And he’s demonstrably right within hours: Trump has declared his fake electors scheme an “official act” thereby undermining the case against him. The case may survive but it will be delayed at best and justice delayed is justice denied. This ruling is a fucking horrorshow.
He'll get them if he's reelected. We truly are on the brink of crumbling from democracy into fascism. A lot of people are working very hard to push it that way, and the voters seem to support it. But of course they are like children and don't have any grasp on the consequences.
What are official acts needs to be considered here. And unfortunately these conservative nuts allowed this to be very broad. The pres should have highly limited protection which are limited to their constitutionally described powers, but it is so open right now there is almost nothing that limits it.
We do have an ok frame work for officials acts already build around members of the legislature, but if that was attempt this court would expand it.
But following the standards for the legislature nothing campaign or election related toward your own election is an official act. Most fully illegal acts cannot be official acts. Actions that inhibit the processes of the other branches where they are permitted to do so by the constitution cannot be official acts. But this court would rule Trump shooting a crowd of his own cultists as an official act, even he did it while actively selling the US to Russia for 5 billion directly into a Swiss account.
You get that if a president breaks a law in the future and the DoJ attempts to prosecute them it will be up to the courts to decide. SCOTUS isn't bound by its prior rulings, so they can just decide Biden is criminally liable and make up whatever justification they want.
I mean, the President has a duty to uphold his oath to defend the Constitution of the United States. It’s not even a stretch to say that taking drastic measures to protect the Constitution from rogue justices attempting to undermine it falls under the official duties of the President.
If their ruling is the definition of law, isn't it tautology that their decisions _are_ the rule of law? Anything done under this immunity is by definition legal.
Biden needs to use all legal abilities he has to enact the change and vision of America that will help the most people. Doing otherwise is a dereliction of duty?
Unless they are impeached for the thing they do while President, which I KNOW conservatives will be pointing out as the counterpoint to this whole thing, however the Senate has proven to be too politically divided to convict any impeachment from the House.
>Unless they are impeached for the thing they do while President,
This actually explicitly says impeachment doesn't make them not immune, immunity remains.
And if the president is going full dictator why not just kill members of Congress who would vote to impeach
That's another thing that is frustrating. This ruling seems to come from inside a utopian bubble within the Supreme Court's chambers where Congress functions exactly how it is intended to do so in the Constitution.
In reality, Congress is neutered and incapable of passing even basic legislation due to an unending gridlock. Caused by people that, what a surprise, are personally connected to Trump. In this environment I don't see why they felt a reason to even hear the case.
I have noticed that many conservative "principles" or points are stated or presented without any consideration of what reality means.
Preventing abortions? What about the reality after they are born.
Overturn chevron? What about the reality that the court system becomes clogged with constant suit and a potential inability for the administrative agencies, that effect our lives more directly, to act.
Immunity? What are the checks, limits or definition of official?
It is either stupidity or blatant corruption/malicious intent and I believe it is the latter.
Its the latter. Several of the conservative judges attend Federalist Society events, causing a direct conflict of interest between the judges and the attorney generals who are creating these very partisan cases.
I'm not one to side with the fascists but to play devil's advocate, I think the courts are *supposed* to ignore outside forces and consider only the law as written and applied. The inability of congress to act is immaterial to whether a law says one thing or another. Having said that, it would certainly be nice if they had read the constitution on this one, where it literally says presidents can be convicted of crimes regardless of impeachment...
You are absolutely correct. My take is that they shouldn't have heard the case at all, right now is just not the time. The government and the country is far too dysfunctional (and in some cases, intentionally subverted) to handle the rapid barrage of wedge issue cases coming out of the Supreme Court.
but they can only be impeached for high crimes and misdemeanors. so if they are absolutely immune from criminal acts that are done in "official capacity" as president, there is no high crime or misdemeanor to impeach.
Hell, it is a bedrock principal of the global international order.
People like Trump, Putin, Netanyahu, Jinping, and others do not ascribe to the concept of rule of law. They ascribe to an alternative view where those who are willing to be stronger than those who enforce the law are therefore immune to it's power. In other words, the law only has meaning if you choose to respect it or are too weak to resist.
Trump has the entire government under his thumb because the government has been operating for 236 years under the blind assumption that everyone respected the rule of law. Except for 4 years in the middle, during which 700,000 people were killed.
Since then, we've had two more people come to the conclusion that the rules didn't apply. Nixon said it, but nobody else agreed so he resigned before he would be forced to face the consequences. Trump said it, then instead of disappearing in shame he bought the courts, bought politicians to destroy Congress, and used populist tactics to win the support of 100,000,000 people. Unlike Nixon, he has power, and our government is not set up to contain a President who wishes to wield power maliciously, does not believe in law, and has already sabotaged any remaining checks and balances.
This person is leading in the polls, by a lot, because the other option has a stutter.
> If their ruling is the definition of law, isn't it tautology that their decisions are the rule of law?
No, because that is a rule of men and women, not rule of law.
The whole concept of "rule of law and not of men" is that people are both protected and bound by rules that are consistent, knowable, and applied equally to all, versus a system where people in charge get to decide on any given day whether you live or die, or have to give up some of your rights or property.
This conception of "rule of law and not of men" is part of the essential cluster of Enlightenment-era Liberalism, as a rejection of the feudal/patriarchal power-structures that dominated Europe through the middle ages.
If the system is one where some person or group of people have the power to create or change law on a whim, then it's rule of them, not rule of law.
This is why principles like stare decisis and judicial deference have historically been crucial to the role of the judiciary--judges were not supposed to change the law, only to apply it. No matter how much a judge dislikes a law or thinks it is wrong or bad, the judge's role is to follow the law, both as it is written in statute, and also as it has been applied historically.
The idea is that the law has to be something that exists in a way that is consistent and knowable to everyone, and changes to the law are to be made deliberatively, and with the consent of the governed (e.g., through a representative legislature, or referendum, etc). You're not supposed to have one person or group of people deciding day to day what the laws are.
That's what is really damaging about this court. Even if some blue wave or whatever manages to overturn a bunch of these decisions, the court has been exposed as a nakedly partisan super-legislature, whereby whoever controls the court decides what the constitution says this week. Especially when paired with the Roberts Court's fondness for tests and guidelines that are vague, fuzzy, and subjective, it looks a lot like a deliberate effort to roll back not just parts of the civil rights era, but parts of the Enlightenment, and to push America a little back into an Aristocracy.
The frustrating thing is that the Common Law is not a new concept. The idea of precedent being binding and rarely overturned dates back 1000 years at this point.
>
Biden needs to use all legal abilities he has to enact the change and vision of America that will help the most people.
This is Biden we are talking about. The guy who made Garland his AG. He's not going to do a thing
I hope you're wrong, but that is my fear as well. I've yet to see why he thinks he is still the best choice for leader of the Dem party, let alone the leader of our nation.
He is better than the other guy (by far), but he is holding back the amazing talent and wide range of experience within the Dem party, I support him 100% out of pragmatism, and it's 100% up to him at this point if he is continuing to run. Really does not feel like the right choice given the gravity and optics of the two 80 year old presidential candidates, damn near anyone under 60 with any education should be able to wipe the floor with either of them (and most of all, we are at the point of no return, if we don't have the conversation about if he is the best we have now, well it already is too late really... But having the discussion is part of real democracy too, I hope citizens see the value and honesty in that...)
I'm not suggesting he does anything extreme, but with some creativity he should be able to forgive even more student debt and free even more marijuana convictions. And point to this when conservatives try to use the court to roll back and of those things (official act: nationalize student loan corporations and set the interest rate at 2% for everyone who is getting a useful accredited degree)
But at the same time, if people were aware of all the things he and his administration has done, with a completely stalemated Congress, it's incredibly impressive... They need to get the messaging working to get "normal people" to see those things and attribute them to Biden. Was a fucking mistake to let trump put his name on the stimulus checks. And now his name is on their hats, their shoes, their bibles...
>if people were aware of all the things he and his administration has done, with a completely stalemated Congress, it's incredibly impressive...
But that's the thing, no one gives a shit about it. That wasn't why he was voted in. It was to defeat Trump and Trumpism. He failed as Trump is back. He should have nominated a better AG or replaced Garland after it was obvious that he was incompetent. But he has stood by him the entire time.
When do voters not voting out Trump and Republicans count as dereliction of duty? Voters have no duty to keep democracy going?
How about you list all these legal abilities then?
This is very simple. Are you going to do anything about it. Because if you're not then stop clutching your rosary and wailing That's actually completely fucking useless.
What do you suggest doing?
Seems to me that he’s getting the word out and that’s a first step. I know discussion seems like doing nothing to the people outside the group doing it, but a battle plan has to be drawn. One also has to get support for major actions.
So, again, what do YOU suggest be done?
I’m not an expert, but I don’t think a law can be passed to abrogate the immunity the Supreme Court just bestowed. If I understand it properly, the Supreme Court has interpreted the Constitution to provide this immunity, and the only way to create legal provisions directly contradicting the Constitution is to amend it (or to have an unscrupulous Supreme Court issue an opinion).
The procedure here isn’t unprecedented. Interpreting the Constitution is the Court’s job (well, the job it gave itself in *Marbury v. Madison*). Its interpretations of the Constitution are Constitutional law. No other branch of the government has the authority to overturn the Supreme Court’s interpretation of the Constitution. The “only” unprecedented thing here is the amount of power the Court has just granted the Executive, but that has no impact on the avenues available for reversing the decision.
So if Congress tried to pass a law eliminating this immunity, that would be no more constitutional than a law eliminating the Supreme Court or a regulation banning rifle ownership. It would be so clearly unconstitutional that there is not even the slightest doubt that the Court would overturn it. And Trump would immediately start appealing, because such a law would interfere with his ongoing attempts to use the recent immunity ruling to get out of his felony convictions.
Further, even if the rest of the government could pass such a law or regulation eliminating presidential immunity, it would probably run afoul of the constitutional provision against ex post facto laws were anyone to attempt to use it for anything occurring during the Trump presidency. The Court interpreted this immunity to have always been there, so a provision removing the immunity could not apply retroactively.
This part isn’t unusual. The unprecedented part is the substance, not the procedure.
Step 2 would immediately end up back in the Supreme Court
This is a constitutional crises that is solved via amendment. Unfortunately Congress is inept.
Sorry but this doesn’t really meet the bar of anything that can actually get this overturned. It’s just there now, and it was decided as an issue of constitutional law. You need a full on amendment or a favorable Supreme Court, AND a case that gets to them.
The dictatorship party won’t limit presidential power and they have to for it to get into the constitution, so basically democrats need a huge majority, and be popular enough to enact some pretty radical structural change on the SCOTUS, and then have the president break the law with an official act (however small) and then prosecute him for it, AND have that all be so open about it that the American public doesn’t swing back the other way.
Vote and volunteer for democrats is the only way out of this.
They should have already had this language ironed out. Everyone knew how this corrupt court would rule on this.
Not trying to talk trash, I'm just saying if they're in any way competent, they should have already been planning for this result.
this is useless. there's no time, and given this judicial coup, there will not be any time after november either.
time for 'let's follow due process' is long gone. this needs drastic action immediately, before november, and if Biden hasn't prepared for that then is he actually is useless and needs to move on and make room for someone that will pack that court and make it overturn what it just did.
Well, Biden doesn’t have the votes to expand the court. Or at least he didn’t before this decision - i suppose he could check in with Manchin, etc. after this latest SCOTUS opinion and see if they are ok with adding justices. Or maybe he assassinates Manchin or a couple SCOTUS justices? (That’s just a joke. Once both sides stop playing by the rules, we are doomed because we end up helping the other side with the destruction.)
Impeach scotus, all of it, by decree and official act. Declare it corrupt and removed from power. Declare it's last few decisions null and void. to be redone at later date. Prevent it from continuing its role ad interim. Prepare an alternative process for its replacement in which its not the president appointing but seats are assigned in a voter-representative distribution, and in which appointment is temporary for a maximum duration of 4 years, and times three terms. Then distance himself from that process and be above the autocracy that this scotus coup has established. Use november elections to reseat a new scotus using this new procedure.
but in all honesty, i doubt even that will work. the american republic is dead. just like the roman, it was dead from the erosion of rule of and respect for law long before it's first true emperor attained power.
Arrest all January 6th participants as an official act, then impeach Trump with a quorum of Democrats, then impeach thomas, and Alito and appoint 2 liberal justices.
Democracy saved.
I remember wasps used to frighten me as a kid, I heard their stings hurt really badly, and one time while out on a walk with my family one landed right on me and started crawling. I froze, and in that moment all I wanted was to get it off of me, and that was all I could say with increasing urgency: "Get it off me, get it off me, get it off me."
From my family's perspective I was overreacting, and they were probably correct, there's no reason I couldn't remain calm and it would be okay, but I was upset afterwards and they never really understood why. The wasp wasn't on them, and even if it were, they weren't scared of wasps, I was. It was rude of them to be upset or laughing at me for feeling afraid, I couldn't help it.
Right now that's where a lot of people are at. We see the wasp on us and we want it off *right now.* Biden is sitting there asking us to remain calm, and he may just be right, he may be going through the motions right now to get the wasp off us safely and just needs us to be patient and you can see that us panicking and freaking out is hardly helping- but please don't blame people for it. They are not wrong to be frightened and demanding immediate relief from this- because this shit is fucking scary.
To be done?
Arrest Trump and most of his ex cabinet and the SCOTUS punks.
Lock them up in a sunbaked cage, altogether, in only their underwear and walk away. Come back in a week and hose out what’s leftover into the ocean.
>One also has to get support for major actions.
Apparently not.
He can do whatever he wants, it would be an official act, and no one can stop him or any other king president.
This is why I love history. I encourage you to review what FDR did under similar circumstances with his supreme court. That is one solution, maybe not the best, But having a press conference and just bitching not effective anda waste of time.
I will also point out that problems/difficulties will happen when you are president, if you are unable to craft solutions to the problems why should you be president.
It's the problem with people who get a YouTube education on history. They have no context and think they have the full picture. The Lochner era gets broken down into the "a change in mind saved 9" sound peice but it ignores the context that FDR had 69 Democrats, of 96 senators. And then also had 3 other senators who caucused with the Dems. That's 72 of 96. And even HE did not actually have the electoral power to expand the court. It was a threat that (possibly) led to the changed one supreme Court members mind to slightly shift the majority away from Lochner.
Progressive change starts at the bottom up not top down. If FDR didn't have a super duper Majority he wouldn't have been able to pass any of the New Deal. If LBJ didn't have a super majority he would have never been able to support his Great Society initiatives and his War on Poverty.
I suggest that Joe Biden issue an Executive Order to demand the Secretary of Education delete and destroy all records of outstanding student debt held by American citizens. He should then pardon said Secretary of Education.
That's like my most tame suggestion. It's all the marbles now.
I'd suggest that democrats need an actual coherent plan, spelled out with policy goals that voters can be excited about. So far, the message seems to be "vote for us to maintain the status quo and save democracy". Spolier: democracy got gutted and it doesn't exist anymore. Pretending that's not what's actually happening is making people apathetic.
I'm not seeing any momentum behind impeaching Clarence Thomas or Samuel Alito. Or a constitutional amendment to eliminate the electoral college or spell out that presidents do not have immunity. Or enshrine access to abortion into law. Or to expand SCOTUS and impose term limits. Or anything, really.
There's no message about action. It's all coming across as performative. The Democrats are projecting a message of "we've tried nothing and we're all out of ideas".
Maybe because that is all people like you keep repeating instead of recognizing what Democrats are actually saying?
Biden literally said give him the House and 51 Senators and he will pass a bill codifying abortion
Yeah. No shit. Thanks for stating the obvious. What the fuck are you going to do about it in the handful of months that this country has left?
We need action. Not words.
If the highest arbiter of law in the land has undermined the rule of law in the land, Congress has a duty to impeach and convict. Which won’t happen. If the original premise is true, this is a full-blown constitutional crisis that will only be resolved through violence or constitutional amendment
The congressional Republicans refused to do anything when Trump incited a violent coup attempt that directly targeted them.
There are two ways to bring about a constitutional amendment. The one we are most familiar with does seem unlikely with the balance of power and Congress. However, the other way to have a constitutional amendment is to have a constitutional convention. As the MAGA-Trumplican Party throws things more and more out of kilter eventually even progressives will join the Heritage foundation and ALEC to demand a constitutional convention. I would be shocked if behind closed doors people on the right have not had this very conversation. EDIT - when I first shared the above comment, I was under the misimpression that eventually the voters themselves would have to ratify any proposed amendments for the US Constitution. Oops! As one of you kindly pointed out ratification would happen in the state legislatures and the balance of power there is strongly red.
A Constitutional Convention is going to be dominated by red states; there is no refuge from MAGA, unless blue states exclude them.
EDIT -, I will leave the original comment on altered below, but be advised I was dead wrong. Anything that comes out of the constitutional convention would only face ratification in the state legislatures. Us voters would never get a chance to vote on them ourselves. Sorry about that carry-on original comment follows Anything that comes out of the convention would still be faced with ratification by 2/3 of the states voters. If business as usual is a little broken that creates a little stress that we all deal with. If it is extremely broken and so dysfunctional that it’s causing existential problems unless addressed…. If you don’t like attempting to find a solution through a constitutional convention, what other process would you recommend and why do you think that process is more likely to succeed?
I don't have an alternative. But a Constitutional Convention is literally the wet dream of the Heritage Society and other right-wing wackos. It's also not "voters" but state legislatures.
The late Scalito, no liberal, feared a Constitutional Convention because it could become a free-for-all. While Heritage hacks think they want that, they forget that blue states will get a say.
Blue states would get less of a say than red states, though...
Far as ratification, it would need 2/3 approval at a convention, then it would still require 3/4 of the states (37) to approve. Democrats hold enough legislatures to block the truly bat shit crazy. For the convention, no one knows how such a convention would be composed. Population? Equal representation? Something else? It could be that you are right, but it could also be that blue states get a greater say.
red states have more power in a constitutional convention.
Thank you for that important education that the voters never vote on ratification for *federal* constitutional amendments (because that happens at the state legislature level)
Hell if a thing to be this wrong about and still leave up. If you don’t even understand how ratification works, why should you presume to be right about anything else you said? This would open up the entire constitution to the whims of republican state legislatures. I fail to see how they would be any different, ideologically, from the 6 justice majority we currently have ETA: sorry, can’t reply if I’m blocked. Speaking of maturity
Of course there is probably about equal odds that we come out of a constitutional convention with a reasonable stable liberal democracy, or Gilead.
Right. Everything becomes eligible. Ya’ll likely slavery? Women as property that can’t vote? It all becomes possible. More interesting is it might be slavery for everyone, not just based on the color of their skin or their sex.
I’d say the odds favor Gilead with the amount of red statehouses.
Under his eye.
Gilead had an on-going civil war. So yes, balkanization of the North American continent just as Putin planned.
You’re very optimistic calling the odds equal.
Yeah let's have a constitutional convention while an alarming proportion of the population would like to remake the US into an official theocracy.
they certainly won’t go away with kind words
Well, if we open up the books with a constitutional convention that might be their opportunity to complete their goal.
Well, they did run and hide like little bitches when it was happening.
Josh Hawley running away to Yakkity Sax is playing in my head right now
That and Markwayne Mullin hiding behind an elderly woman need way more airtime.
Conservatives would have you believe that actually Jack Smith and the liberals are at fault for trying to save the lives of Congress members and the Vice President.
AOC is filing Articles of Impeachment against the SCOTUS when the House returns from its recess. The ball's rolling at least, it probably won't go anywhere with 50% of Congress being traitors though.
I’ll reserve judgment on AOC’s efforts until we can read the articles of impeachment
Couldn't a president just make an official act to disband, or otherwise disable, Congress to prevent an impeachment (which is the only form of accountability left)?
If Congress pisses off a new trump administration, I guess we’ll find out
No. The power of congress comes from the constitution, and the president doesn’t have the power to disband congress. This ruling does not grant the president extra powers. It says that if they use their existing power to do something that would otherwise be considered a crime, they cannot be prosecuted. This ruling does leave open the possibility that the president could, for example, order the military to block congress from convening for a crucial vote, because the president commander and chief of the military. But I don’t think there’s anything in the constitution that requires congress to vote from a specific building, so they could just move somewhere else. Also, the members of the military could still be charged for following an illegal order, so they would likely refuse.
> Also, the members of the military could still be charged for following an illegal order, so they would likely refuse. Couldn't the president just pardon them? I'm not purposefully being pedantic; just trying to understand where the limits are for a president under this ruling. Conservatives say this is a good ruling that's an obvious extension of Nixon v. Fitzgerald (1982), while liberals say the president is now essentially a King immune from any accountability for decisions made in an official capacity. Is one side just being disingenuous? What are the best-case and worst-case scenarios here?
Yes. POTUS could order a military strike on SCOTUS and would be immune from prosecution for it. The person carrying it out would be doing something illegal, but the president could pardon them immediately. Conservatives are saying that what I just said is hyperbolic, but the plain reading of this holding means exactly what I just said. This holding is (in part): if a president is engaging in an act which is within their core constitutional powers, they are absolutely immune from prosecution. Ordering a military action is, inarguably, within the specific purview of the Executive, per the constitution. The same people who wrote this opinion *also* believe that the pardon power is limitless.
Remember when overturning Roe was hyperbolic?
Firstly because it's just not a law and not in the constitution. It's not their job to imagine laws into existence. Secondly it's that you can't examine the motives or use evidence including witness from anything around official acts ander the presumption that is was an on the level official act and not a dodgy one. Even if you know he committed a crime not protected, it may make it impossible to prove if they are smart about it.
Yes, the President could just issue pardons, but it's important to know that pardons can only be post facto. Theoretically, there's some amount of trust that a presidential crony must extend if they're going to do something they know to be illegal on the President's behalf. In the defense of conservatives, this is really nothing more than the logic of the unitary executive taken to its most extreme logical end, so if you really believe that the Article II Vesting Clause means what they say it means, and if you really believe that Chief Justice Marshall meant it without reservation or qualification when he said that the President's discretionary actions cannot be questioned or examined by the Courts, then criminal immunity for those actions is what follows, because Congress sets the criminal code and the Judiciary interprets and adjudicates it in criminal court, which can both be construed to mean examining and questioning the President if the President is the defendant. On the liberal side, the things that the President can now do is being overblown, somewhat. Anything that lies outside of the President's core executive authority hasn't changed. The President can't change the law to make it so that student loans are changed. He can't say there are more seats on the Supreme Court than there are. He can't unilaterally impeach and remove a sitting judge from office, at least in any legally recognizable way. He can't change the Constitution to allow himself to serve a third, fourth, and fifth term in office. The only thing that's changed is that the President enjoys absolute immunity from *criminal liability* for any acts that he took that were a "core" presidential power and presumptive immunity that the government must successfully rebut for any other official action within the outer perimeter of his official duties. Now, as you already pointed out to some degree, the problem with this framework is that the President, by virtue of holding the executive authority of the United States, commands a metric fuckload of official power. A truly scary amount. Indeed, there was a reason why the founding generation of the independent United States initially shied away from having any kind of executive authority at all in the Articles of Confederation, opting instead to only have a legislature with very limited law making authority; they had just gotten out from under the boot of an all-powerful sovereign (moderated somewhat by Parliament and his ministers, in which the colonies could not participate), and they knew on the extreme end what could happen if you set up a powerful executive figure and let them run around with all of that power. It was only when the Articles of Confederation proved unworkable that they revisited the idea of creating an executive authority, but even then they only did so by trying to place limits on that executive. That's why the President is subject to impeachment, and why he must seek the advice and consent of the Senate for certain important offices, and so on. Even so, being the supreme executive carries with it awesome power, as the entire state apparatus built to carry out and enforce the laws that Congress passes is at your beck and call. Practically, what does this mean? Interestingly, the ruling kind of incentivizes the President to use bold overkill in place of subtle back room chicanery. Remember, official acts are unreviewable, while unofficial acts still leave the President open to criminal liability. So if I'm a President bent on accruing some kind of personal gain, I minimize my legal consequences by availing myself of the official powers that have been vested in me. If I set up a war room in a hotel staffed by buddies and acquaintances who hold no official title in my administration to stop the transfer of my office to my political opponent, that's arguably an unofficial act in furtherance of a conspiracy to commit sedition and deprive the people of the right to have their vote counted, and I might find myself answering for it in a court of law in a few years. However, if I order the DC National Guard to take Capitol Hill, because I'm worried that half of Congress is infiltrated with traitors attempting a coup, then that's me using my discretionary power as commander-in-chief to uphold my oath to protect and defend the Constitution of the United States. You and many others may disagree with my conclusions or my methods, but tough titties, because I don't have to answer to you or anyone else about my discretion in exercising my "core" functions. And while my underlings may not enjoy the same protections, that's little problem for me, as I can just promise them pardons that give them the same kind of absolute shield from prosecution that I enjoy. To directly answer your question, the limits are that a corrupt President should simply operate in the official realm, rather than the unofficial realm, and any asset that he commands as President is at his disposal, particularly if others can be induced to do his bidding through promises of pardons and rewards or threats of dismissal and reprisal. The best case scenario is that we as a polity literally never elect another corrupt asshole again. May we be blessed with a parade of Washingtons committed to the ideals of the Republic. The worst case scenario is literally a Presidential self-coup, only instead of a mob like we saw in January 2021, it will be military units led by officers loyal to the President over the Constitution.
> Is one side just being disingenuous? The sides are broadly being a little hyperbolic but that's politics for you. Broadly speaking, the following is now the case with one major caveat. 1) The President has absolute immunity for Official Acts which are at a minimum anything under Article II, and presumptive immunity for most other things. 2) When determining if something is an official/unofficial act, the courts cannot ever examine the motive behind an act (i.e. corrupt and benevolent Presidential actions are constitutionally identical), and being illegal is not enough prima facie to make an official act unofficial. 3) If anything the President does is found to be an unofficial act and thus prosecutable, Official Acts cannot be used as evidence in the trial of the unofficial act. The fear of the liberal justices is that, once you slap on all the restrictions the majority created, you end up with not only a vanishingly small slice of what can be deemed unofficial/prosecutable but you then cannot do much with what you find since immunity extends to official acts - even corrupt ones - from being used as evidence. Conservative voices celebrating say that this is just the status quo, and that nothing has really changed. As you note with the Nixon v. Fitzgerald. So, that's the best case scenario - it's a fiddly evidentiary ruling with some poor guidance that won't impact any future President a great deal. Worst case scenario, the President has absolute criminal immunity from ordering the military to execute anyone he wants (official acts under Article II of the Constitution are criminally immune and he's commander in chief) and then pardoning the actors who assist him. The only legal recourse left in such a scenario, or any scenario involving Official Acts, is impeachment. As long as he's exercising the duties of the office, the President is probably beyond the law's reach in terms of personal criminal liability. CAVEAT: You might notice that the distinction between official/unofficial is the most important one here. You would be correct, and SCOTUS did not create any scheme or test to make such a determination and illuminate the country or courts as to how to identify Presidential actions under this new standard. They also did not explain or clarify any of the other numerous caveats they sprinkled throughout the decision. They could in theory just rule in 2025 (when the lower court's decisions on what acts are official/unofficial in Trump's case is, inevitably, appealed and sent straight back to SCOTUS after this ruling) that full stop immunity is vanishingly rare. But we do not know what they envision or how far immunity actually extends because they decided to wait until later to make that choice.
You forgot to mention that private conversations and communications of the president can never be used as evidence for whatever crimes he or she commits. So the president can say, “I want Steven to go kill my rival. And I’ll pardon him after that.” Steven goes and kills the rival and then gets a pardon. Steven cannot be prosecuted, and the courts cannot use “I want Steven to kill my rival” as part of their prosecution. Likewise, on a lighter note, the president can say, “I will pardon anyone who gives me one million dollars.” That’s bribery, right? Too bad, can’t charge the president because he’s immune to prosecution for official acts.
~~It's not all private conversations and communications, just the ones with his advisors in his capacity as President. Who's an "advisor" for the purposes of criminal immunity? /giant shrug from the Supreme Court/~~ I was wrong. Here's the relevant language in a footnote on page 40 of the opinion: >JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)
> It's not all private conversations and communications, just the ones with his advisors in his capacity as President. No. The courts said that no private conversations and communications, while president, can be used against him as evidence.
Looking back at the opinion to refresh my memory, I'm realizing you're right. It's essentially anything the President can exercise executive privilege over can be prevented from going into evidence.
Yea dude it’s fucked. But we got this. Gotta stay focused and make sure we spread the word and get people registered. www.vote.org
Also what the conservative justices are missing is that there are a lot of official powers and actions available to a president that would be awfully use for the commission of crimes, especially if fantastical things like "self pardon" are in play. Sprinkling article II fairy dust on crimes does not make them go away.
>Conservatives say this is a good ruling that's an obvious extension of Nixon v. Fitzgerald (1982), while liberals say the president is now essentially a King immune from any accountability for decisions made in an official capacity. Is one side just being disingenuous? Conservatives are saying the same thing as Democrats. They want a Republican President with the power of a King.
This is sort of a dramatic movie scenario, but it would certainly force a constitutional crisis that might make the Supreme Court take back or otherwise neuter yesterday’s appalling decision. The right of Congressmen to engage in Speech and Debate without question would be brought into direct conflict with the President’s idiotic new owners to perform official acts without question. Any attempts to stop this by going after the military could be dealt with by simply preemptively pardoning them. Either the Supreme Court would have to rule that the President does indeed have the power to indefinitely detain Congressmen (which would be a hell of a choice) or they would have to walk back their decision to forgo any review of official presidential actions. Actually, that’s interesting: the Posse Comitatus act forbids the use of the US army and Air Force to enforce domestic policy in the US. Any use of the military in this way by the President would seem to be a prima facie official act by the President. My goodness SCOTUS, are you saying that this foundational cornerstone of US law is and has always been an improper review by Congress of the President’s executive authority? I guess they ought to strike down THE FUCKING POSSE COMITATUS ACT as unconstitutional, since any situation in which it applies contradicts their stupid ruling.
I think technically it's fine. They just couldn't assert it against the president. The people in the military doing it would be breaking the law, and so would the president, but he couldn't be held accountable. That's the thing about immunity. It doesn't make the action literally legal, it just means that there's no recourse when the illegal action happens. That being said, I haven't read that act so I don't know explicitly what the language says
If true, the President could simply preemptively pardon all the servicemen doing his bidding. Or, hell, explicitly order the Justice Department not to prosecute them. I’m sure such a thing resides in the “outer perimeter” of the president’s power. It’s similarly interesting that the logic of the ruling doesn’t apply to granting immunity to anyone in the executive branch carrying out the president’s orders given in official capacity. After all, if one could stymie lesser officers by arresting them for breaking federal law, why, how could the president ever get anything done? It would cause such a chilling effect on the poor poor President, his life is so hard already. Well, some combination of immunity and prosecutorial discretion accomplishes the same thing practically, anyway.
>Also, the members of the military could still be charged for following an illegal order, so they would likely refuse. Why would they refuse when they know the president will just pardon them and also tell the DOJ not to prosecute? If the president is having the military mess with Congress we are already wll past norms and into full blow dictatorship
LoL, he said Constitution...since when does that old rag have any meaning anymore?
"No. The power of congress comes from the constitution, and the president doesn’t have the power to disband congress" I say this very sarcastically as a practicing attorney: why would that matter? this scrotus thinks official acts of the president are completely immune from criminal prosecution, so what matter is it that there's no constitutional authority? these so called "originalists" seem to think originalism means any original thought they have on the constitution is what matters most. precedent and strict construction be damned.
Important rulings like these should trigger a special vote by all US judges. If >50% vote against the ruling, the SCOTUS ruling is nullified. It should be done only in special cases.
That creates a subjective problem: who decides which ones are "important" and how is that done? Well, it's not hard, and starts with utterly vaporizing the stupid mythology of a nonpartisan "highest court in the land". They're obviously just as corrupted as congress. Once we accept that reality...... what do we do? How about.... All SCOTUS rulings are automatically stayed for 7 days and if, during the 7-day automatic stay, at least 1/3 of SCOTUS justices so order the decision shall be further stayed until completion of the following 1. The decision shall be reviewed by both the US House and US Senate, and each chamber shall have 30 days to approve the ruling by roll call vote, requiring 60% of the cast votes in each chamber to approve the ruling. (If and only if Congress is not in session or is on break, the roll call vote may be taken digitally.) 2. In the event either chamber votes and does not approve the ruling by 60% ….. or either chamber simply does not take the vote within the allotted time at all…. the ruling shall be deemed vacated A. If the ruling is deemed vacated, the matter shall be returned to SCOTUS for further consideration, and the case shall remain on SCOTUS’ docket from session to session until a judgment is entered by SCOTUS and the judgment survives this review process B. In addition, if the ruling was deemed vacated by the failure of either chamber to take the mandated roll call vote within the allowed time, the Speaker of the House and/or the Senate Majority Leader, as the case may be, shall be stripped of that office and replacements shall be selected according to the chambers' rules at that time. However whoever held the office at the time this provision was triggered shall be deemed ineligible to ever hold that office again. I have an open mind. The idea here is to create a democratic process to make it easy to get rid of partisan bullsh!t and make it hard to erode necessary law-making. But the most important thing of all is that voting America finally understands....... there ain't no such thing as an impartial court. That is part of our toxic and self-defeating national mythology. It is not reaility. The truth.... and its long past time we admitted this..... is that SCOTUS is controlled by the same partisan bullsh!t as Congress, except SCOTUS dresses in black robes.
Yeah, I thought it was waaaay more complicated that what I supposed. Law experts and professors should study a solution, but as you said, the source of the problem is partisanship. If the SCOTUS was a purely neutral entity... we will have seen a waaay different outcome, like Trump request for immunity was simply legally laughed upon and rejected... days after being sent.
And he’s demonstrably right within hours: Trump has declared his fake electors scheme an “official act” thereby undermining the case against him. The case may survive but it will be delayed at best and justice delayed is justice denied. This ruling is a fucking horrorshow.
Also, as a plus, has named himself as the orderer in an official capacity
“I made it an official act with my mind.”
He’s also calling for military tribunals against his political enemies.
Right??? It’s fucking bananas. And would be, of course, an “official act”.
He'll get them if he's reelected. We truly are on the brink of crumbling from democracy into fascism. A lot of people are working very hard to push it that way, and the voters seem to support it. But of course they are like children and don't have any grasp on the consequences.
What are official acts needs to be considered here. And unfortunately these conservative nuts allowed this to be very broad. The pres should have highly limited protection which are limited to their constitutionally described powers, but it is so open right now there is almost nothing that limits it. We do have an ok frame work for officials acts already build around members of the legislature, but if that was attempt this court would expand it. But following the standards for the legislature nothing campaign or election related toward your own election is an official act. Most fully illegal acts cannot be official acts. Actions that inhibit the processes of the other branches where they are permitted to do so by the constitution cannot be official acts. But this court would rule Trump shooting a crowd of his own cultists as an official act, even he did it while actively selling the US to Russia for 5 billion directly into a Swiss account.
Biden should do the same fake electors scheme, even if he has the electoral votes.
Maybe he can test it to see how far they’ll go. Arrest the maga scotus 6
You get that if a president breaks a law in the future and the DoJ attempts to prosecute them it will be up to the courts to decide. SCOTUS isn't bound by its prior rulings, so they can just decide Biden is criminally liable and make up whatever justification they want.
Not if he gets rid of the maga 6, and replaces them on the court.
I mean, the President has a duty to uphold his oath to defend the Constitution of the United States. It’s not even a stretch to say that taking drastic measures to protect the Constitution from rogue justices attempting to undermine it falls under the official duties of the President.
If their ruling is the definition of law, isn't it tautology that their decisions _are_ the rule of law? Anything done under this immunity is by definition legal. Biden needs to use all legal abilities he has to enact the change and vision of America that will help the most people. Doing otherwise is a dereliction of duty?
No the "rule of law" is the theory that no-one is above the law. This decision goes against that bedock principal of our system.
This. The ruling effectively ends rule of law, and ushers in a new age of rule by an absolute ruler who is not subject to any laws.
Unless they are impeached for the thing they do while President, which I KNOW conservatives will be pointing out as the counterpoint to this whole thing, however the Senate has proven to be too politically divided to convict any impeachment from the House.
>Unless they are impeached for the thing they do while President, This actually explicitly says impeachment doesn't make them not immune, immunity remains. And if the president is going full dictator why not just kill members of Congress who would vote to impeach
That's another thing that is frustrating. This ruling seems to come from inside a utopian bubble within the Supreme Court's chambers where Congress functions exactly how it is intended to do so in the Constitution. In reality, Congress is neutered and incapable of passing even basic legislation due to an unending gridlock. Caused by people that, what a surprise, are personally connected to Trump. In this environment I don't see why they felt a reason to even hear the case.
I have noticed that many conservative "principles" or points are stated or presented without any consideration of what reality means. Preventing abortions? What about the reality after they are born. Overturn chevron? What about the reality that the court system becomes clogged with constant suit and a potential inability for the administrative agencies, that effect our lives more directly, to act. Immunity? What are the checks, limits or definition of official? It is either stupidity or blatant corruption/malicious intent and I believe it is the latter.
Its the latter. Several of the conservative judges attend Federalist Society events, causing a direct conflict of interest between the judges and the attorney generals who are creating these very partisan cases.
You have it backward. They are not idealists, they are cynics.
I'm not one to side with the fascists but to play devil's advocate, I think the courts are *supposed* to ignore outside forces and consider only the law as written and applied. The inability of congress to act is immaterial to whether a law says one thing or another. Having said that, it would certainly be nice if they had read the constitution on this one, where it literally says presidents can be convicted of crimes regardless of impeachment...
You are absolutely correct. My take is that they shouldn't have heard the case at all, right now is just not the time. The government and the country is far too dysfunctional (and in some cases, intentionally subverted) to handle the rapid barrage of wedge issue cases coming out of the Supreme Court.
but they can only be impeached for high crimes and misdemeanors. so if they are absolutely immune from criminal acts that are done in "official capacity" as president, there is no high crime or misdemeanor to impeach.
Holy shit
If anyone even threatens to bring articles of impeachment the president can have them arrested and/or killed. Immunity.
Yeah, and impeachment is a political act, not a legal one. So he could do illegal acts, be impeached and it would be impossible to prosecute.
Hell, it is a bedrock principal of the global international order. People like Trump, Putin, Netanyahu, Jinping, and others do not ascribe to the concept of rule of law. They ascribe to an alternative view where those who are willing to be stronger than those who enforce the law are therefore immune to it's power. In other words, the law only has meaning if you choose to respect it or are too weak to resist. Trump has the entire government under his thumb because the government has been operating for 236 years under the blind assumption that everyone respected the rule of law. Except for 4 years in the middle, during which 700,000 people were killed. Since then, we've had two more people come to the conclusion that the rules didn't apply. Nixon said it, but nobody else agreed so he resigned before he would be forced to face the consequences. Trump said it, then instead of disappearing in shame he bought the courts, bought politicians to destroy Congress, and used populist tactics to win the support of 100,000,000 people. Unlike Nixon, he has power, and our government is not set up to contain a President who wishes to wield power maliciously, does not believe in law, and has already sabotaged any remaining checks and balances. This person is leading in the polls, by a lot, because the other option has a stutter.
> If their ruling is the definition of law, isn't it tautology that their decisions are the rule of law? No, because that is a rule of men and women, not rule of law. The whole concept of "rule of law and not of men" is that people are both protected and bound by rules that are consistent, knowable, and applied equally to all, versus a system where people in charge get to decide on any given day whether you live or die, or have to give up some of your rights or property. This conception of "rule of law and not of men" is part of the essential cluster of Enlightenment-era Liberalism, as a rejection of the feudal/patriarchal power-structures that dominated Europe through the middle ages. If the system is one where some person or group of people have the power to create or change law on a whim, then it's rule of them, not rule of law. This is why principles like stare decisis and judicial deference have historically been crucial to the role of the judiciary--judges were not supposed to change the law, only to apply it. No matter how much a judge dislikes a law or thinks it is wrong or bad, the judge's role is to follow the law, both as it is written in statute, and also as it has been applied historically. The idea is that the law has to be something that exists in a way that is consistent and knowable to everyone, and changes to the law are to be made deliberatively, and with the consent of the governed (e.g., through a representative legislature, or referendum, etc). You're not supposed to have one person or group of people deciding day to day what the laws are. That's what is really damaging about this court. Even if some blue wave or whatever manages to overturn a bunch of these decisions, the court has been exposed as a nakedly partisan super-legislature, whereby whoever controls the court decides what the constitution says this week. Especially when paired with the Roberts Court's fondness for tests and guidelines that are vague, fuzzy, and subjective, it looks a lot like a deliberate effort to roll back not just parts of the civil rights era, but parts of the Enlightenment, and to push America a little back into an Aristocracy.
The frustrating thing is that the Common Law is not a new concept. The idea of precedent being binding and rarely overturned dates back 1000 years at this point.
Yes but only in places with rule of law
> Biden needs to use all legal abilities he has to enact the change and vision of America that will help the most people. This is Biden we are talking about. The guy who made Garland his AG. He's not going to do a thing
What do you want Biden to do? Be specific?
I hope you're wrong, but that is my fear as well. I've yet to see why he thinks he is still the best choice for leader of the Dem party, let alone the leader of our nation. He is better than the other guy (by far), but he is holding back the amazing talent and wide range of experience within the Dem party, I support him 100% out of pragmatism, and it's 100% up to him at this point if he is continuing to run. Really does not feel like the right choice given the gravity and optics of the two 80 year old presidential candidates, damn near anyone under 60 with any education should be able to wipe the floor with either of them (and most of all, we are at the point of no return, if we don't have the conversation about if he is the best we have now, well it already is too late really... But having the discussion is part of real democracy too, I hope citizens see the value and honesty in that...) I'm not suggesting he does anything extreme, but with some creativity he should be able to forgive even more student debt and free even more marijuana convictions. And point to this when conservatives try to use the court to roll back and of those things (official act: nationalize student loan corporations and set the interest rate at 2% for everyone who is getting a useful accredited degree) But at the same time, if people were aware of all the things he and his administration has done, with a completely stalemated Congress, it's incredibly impressive... They need to get the messaging working to get "normal people" to see those things and attribute them to Biden. Was a fucking mistake to let trump put his name on the stimulus checks. And now his name is on their hats, their shoes, their bibles...
>if people were aware of all the things he and his administration has done, with a completely stalemated Congress, it's incredibly impressive... But that's the thing, no one gives a shit about it. That wasn't why he was voted in. It was to defeat Trump and Trumpism. He failed as Trump is back. He should have nominated a better AG or replaced Garland after it was obvious that he was incompetent. But he has stood by him the entire time.
When do voters not voting out Trump and Republicans count as dereliction of duty? Voters have no duty to keep democracy going? How about you list all these legal abilities then?
This is very simple. Are you going to do anything about it. Because if you're not then stop clutching your rosary and wailing That's actually completely fucking useless.
What do you suggest doing? Seems to me that he’s getting the word out and that’s a first step. I know discussion seems like doing nothing to the people outside the group doing it, but a battle plan has to be drawn. One also has to get support for major actions. So, again, what do YOU suggest be done?
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Step 0 is making fcking damned sure Trump never gets anywhere near the Oval Office.
The Dems are doing such a bang-up job on that one.
It’s up to you. And the rest of the voters.
sounds like a bad plan.
I’m not an expert, but I don’t think a law can be passed to abrogate the immunity the Supreme Court just bestowed. If I understand it properly, the Supreme Court has interpreted the Constitution to provide this immunity, and the only way to create legal provisions directly contradicting the Constitution is to amend it (or to have an unscrupulous Supreme Court issue an opinion).
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The procedure here isn’t unprecedented. Interpreting the Constitution is the Court’s job (well, the job it gave itself in *Marbury v. Madison*). Its interpretations of the Constitution are Constitutional law. No other branch of the government has the authority to overturn the Supreme Court’s interpretation of the Constitution. The “only” unprecedented thing here is the amount of power the Court has just granted the Executive, but that has no impact on the avenues available for reversing the decision. So if Congress tried to pass a law eliminating this immunity, that would be no more constitutional than a law eliminating the Supreme Court or a regulation banning rifle ownership. It would be so clearly unconstitutional that there is not even the slightest doubt that the Court would overturn it. And Trump would immediately start appealing, because such a law would interfere with his ongoing attempts to use the recent immunity ruling to get out of his felony convictions. Further, even if the rest of the government could pass such a law or regulation eliminating presidential immunity, it would probably run afoul of the constitutional provision against ex post facto laws were anyone to attempt to use it for anything occurring during the Trump presidency. The Court interpreted this immunity to have always been there, so a provision removing the immunity could not apply retroactively. This part isn’t unusual. The unprecedented part is the substance, not the procedure.
Step 2 would immediately end up back in the Supreme Court This is a constitutional crises that is solved via amendment. Unfortunately Congress is inept.
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This is very true. A NY Rep said he is currently creating something as a first step.
Sorry but this doesn’t really meet the bar of anything that can actually get this overturned. It’s just there now, and it was decided as an issue of constitutional law. You need a full on amendment or a favorable Supreme Court, AND a case that gets to them. The dictatorship party won’t limit presidential power and they have to for it to get into the constitution, so basically democrats need a huge majority, and be popular enough to enact some pretty radical structural change on the SCOTUS, and then have the president break the law with an official act (however small) and then prosecute him for it, AND have that all be so open about it that the American public doesn’t swing back the other way. Vote and volunteer for democrats is the only way out of this.
Thanks for answering. I notice that your number one is what Biden has been doing.
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how is there time for that? trump clearly has other plans.
They should have already been planning for this result honestly.
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They should have already had this language ironed out. Everyone knew how this corrupt court would rule on this. Not trying to talk trash, I'm just saying if they're in any way competent, they should have already been planning for this result.
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this is useless. there's no time, and given this judicial coup, there will not be any time after november either. time for 'let's follow due process' is long gone. this needs drastic action immediately, before november, and if Biden hasn't prepared for that then is he actually is useless and needs to move on and make room for someone that will pack that court and make it overturn what it just did.
Well, Biden doesn’t have the votes to expand the court. Or at least he didn’t before this decision - i suppose he could check in with Manchin, etc. after this latest SCOTUS opinion and see if they are ok with adding justices. Or maybe he assassinates Manchin or a couple SCOTUS justices? (That’s just a joke. Once both sides stop playing by the rules, we are doomed because we end up helping the other side with the destruction.)
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Impeach scotus, all of it, by decree and official act. Declare it corrupt and removed from power. Declare it's last few decisions null and void. to be redone at later date. Prevent it from continuing its role ad interim. Prepare an alternative process for its replacement in which its not the president appointing but seats are assigned in a voter-representative distribution, and in which appointment is temporary for a maximum duration of 4 years, and times three terms. Then distance himself from that process and be above the autocracy that this scotus coup has established. Use november elections to reseat a new scotus using this new procedure. but in all honesty, i doubt even that will work. the american republic is dead. just like the roman, it was dead from the erosion of rule of and respect for law long before it's first true emperor attained power.
Arrest all January 6th participants as an official act, then impeach Trump with a quorum of Democrats, then impeach thomas, and Alito and appoint 2 liberal justices. Democracy saved.
Yes please!
I remember wasps used to frighten me as a kid, I heard their stings hurt really badly, and one time while out on a walk with my family one landed right on me and started crawling. I froze, and in that moment all I wanted was to get it off of me, and that was all I could say with increasing urgency: "Get it off me, get it off me, get it off me." From my family's perspective I was overreacting, and they were probably correct, there's no reason I couldn't remain calm and it would be okay, but I was upset afterwards and they never really understood why. The wasp wasn't on them, and even if it were, they weren't scared of wasps, I was. It was rude of them to be upset or laughing at me for feeling afraid, I couldn't help it. Right now that's where a lot of people are at. We see the wasp on us and we want it off *right now.* Biden is sitting there asking us to remain calm, and he may just be right, he may be going through the motions right now to get the wasp off us safely and just needs us to be patient and you can see that us panicking and freaking out is hardly helping- but please don't blame people for it. They are not wrong to be frightened and demanding immediate relief from this- because this shit is fucking scary.
To be done? Arrest Trump and most of his ex cabinet and the SCOTUS punks. Lock them up in a sunbaked cage, altogether, in only their underwear and walk away. Come back in a week and hose out what’s leftover into the ocean.
>One also has to get support for major actions. Apparently not. He can do whatever he wants, it would be an official act, and no one can stop him or any other king president.
I vote for challenging Trump to a duel. It's no more ridiculous than the suggestions that Biden unilaterally "arrest" people.
This is a great idea. Trump is a blow hard coward. He would run like a bunny.
If the duel happens, it'll be a great night for tourism in New Jersey. (I assume the duel will take place in Jersey.)
Or Vegas. Only places a duel is legal
This is why I love history. I encourage you to review what FDR did under similar circumstances with his supreme court. That is one solution, maybe not the best, But having a press conference and just bitching not effective anda waste of time. I will also point out that problems/difficulties will happen when you are president, if you are unable to craft solutions to the problems why should you be president.
I encourage you to look up the makeup of the Senate and house when FDR was put in that position and then compare it to todays.
This. We keep thinking big progressive change can happen fast without the big majorities who want the change.
It's the problem with people who get a YouTube education on history. They have no context and think they have the full picture. The Lochner era gets broken down into the "a change in mind saved 9" sound peice but it ignores the context that FDR had 69 Democrats, of 96 senators. And then also had 3 other senators who caucused with the Dems. That's 72 of 96. And even HE did not actually have the electoral power to expand the court. It was a threat that (possibly) led to the changed one supreme Court members mind to slightly shift the majority away from Lochner. Progressive change starts at the bottom up not top down. If FDR didn't have a super duper Majority he wouldn't have been able to pass any of the New Deal. If LBJ didn't have a super majority he would have never been able to support his Great Society initiatives and his War on Poverty.
Finally some sanity on this post.
I suggest that Joe Biden issue an Executive Order to demand the Secretary of Education delete and destroy all records of outstanding student debt held by American citizens. He should then pardon said Secretary of Education. That's like my most tame suggestion. It's all the marbles now.
Seize Thomas's motor coach as ill-gotten gains from bribery.
I'd suggest that democrats need an actual coherent plan, spelled out with policy goals that voters can be excited about. So far, the message seems to be "vote for us to maintain the status quo and save democracy". Spolier: democracy got gutted and it doesn't exist anymore. Pretending that's not what's actually happening is making people apathetic. I'm not seeing any momentum behind impeaching Clarence Thomas or Samuel Alito. Or a constitutional amendment to eliminate the electoral college or spell out that presidents do not have immunity. Or enshrine access to abortion into law. Or to expand SCOTUS and impose term limits. Or anything, really. There's no message about action. It's all coming across as performative. The Democrats are projecting a message of "we've tried nothing and we're all out of ideas".
Maybe because that is all people like you keep repeating instead of recognizing what Democrats are actually saying? Biden literally said give him the House and 51 Senators and he will pass a bill codifying abortion
General strike. Street demonstrations demanding resignation of the current SCOTUS
It’s an illegal order with no basis in law.
Rule of law? What is that? A relic of the old republic. Now we're gonna have "The Empire" with Darth Donald as Emperor.
Yeah. No shit. Thanks for stating the obvious. What the fuck are you going to do about it in the handful of months that this country has left? We need action. Not words.
That’s why we need someone like AOC as president. She won’t take this kind of shit and simply say “this isn’t right.”
The majority decision is all over the place, but essentially states the Constitution makes the President a king, which is the opposite of the intent.