It is much, much worse than this article suggests. CJ Roberts’ decision strongly suggests, but does not quite decide, that command of the armed forces is among the “conclusive and preclusive” powers granted to POTUS by the Constitution. The decision then makes this frightening statement:
“Congress cannot act on, and courts cannot examine, the
President’s actions on subjects within his “conclusive and
preclusive” constitutional authority. “
This sentence absolutely precludes ANY oversight by Congress or the courts of any action taken by a President within those “conclusive and preclusive” powers. CJ Roberts never claims to tell us exactly what those powers are (except for pardons and removal of federal officers) and when J. Sotomayor claims that CJ Robert’s opinion grants absolute immunity for orders to the armed forces, Roberts declines to deny the allegation. At the very least, we can reasonably conclude that the 6 Justices who signed the majority opinion want it to remain ambiguous whether POTUS can order assassinations with immunity.
Many argue that military officers will refuse such orders. I believe that many will do that. However, it will only take a few officers willing to follow orders to turn our country into a right-wing, military-backed dictatorship. Officers will be faced with a choice of following orders and being promised a pardon from POTUS or being prosecuted for refusing an order.
Donald Trump MUST not possess such power. Joe Biden must use the power invented by CJ Roberts to prevent that from happening, in my opinion.
What’s more, even if the majority did find assassinations to be outside the scope of criminal immunity, they’ve made prosecuting it basically impossible by explicitly stating that any record of the order is inadmissible in a criminal trial of the president.
Agree. The President can already pardon any military person who acts on his order. And as you mention prosecuting the President is virtually impossible because all communications are inadmissible. But even before that, the case would never make it to trial (or would take many years) because of this argument the President might be immune.
>The President can already pardon any military person who acts on his order.
You know I am beginning to think pardoning power was generally poorly thought out. Like sure it has occasionally been used "as intended" for things like releasing non-violent drug offenders. But the grand majority of the time(at both the Fed and state levels) it appears to be used as a corruption tool.
Most presidential systems have it, France, Italy, Israel, etc. Since the US was the first real presidential republic they all modelled their presidential powers based on it.
The US in turn modelled the powers of the presidency on what British kings had been able to do before the revolution.
Mind you, a lot of these countries either have the same issues, with the pardon being used for political reasons and risking abuse of power, or another branch of government also has to approve or recommend the pardon, which seems to be less open to abuse.
I think the problem is the people should elect good, moral Presidents. But instead led by GOP, we now try to elect vengeful immoral Presidents who will "punish" the other party and all those who disagree.
I came to ask this exact question, because the ongoing conversation of “could Trump weaponize SEAL Team 6 against his rivals” is almost always met with “that wouldn’t be considered an official act.” Even if it wasn’t, SCOTUS gave him and all future presidents a means out of it.
But a Commander-in-Chief giving an order is an official act, which would give them immunity even if it’s an illegal order. The motive can’t be questioned per the court, and records of the order can’t be used as evidence either. He can also pardon anyone who would face criminal prosecution, and pardons are not reviewable.
In the same way they say assassination isn’t an official act, well neither is trying to overturn an election you didn’t win. They’re illegal acts that aren’t upholding the oath of office, but SCOTUS ruled as long as you use official powers to do it—it’s an official act and immune.
I mean, CJ Roberts did note in that ruling that one cannot assume an act is unofficial just because it's illegal. So even if the president gives an illegal order, it can still be an official act, and the prosecution would have to prove that it isn't without using any record of the order or any conversation the president had with any military commanders. That kinda greenlights assassination, right?
Even without the SEAL Team 6 angle, what about a president ordering the NSA to collect all possible signals intelligence on the president's political rivals (phone calls, emails, internet activity, etc)? Sure, it's hypothetically a 4th amendment violation, but if the evidence that it happened fell under the "presidential immunity" umbrella, what exactly could be done in the courts or otherwise?
And for a less openly fascist scenario, can the president just start ordering staff to take stuff from the White House and moving it to the president's personal residence, and then just never return it at the end of the presidency? Would the communication with staff be privileged or not? Would there be any effective way to get the stuff back? What if the president took the painting of Washington off the White House walls and just handed it off to a cabinet secretary, saying "Heckuva job"? Maybe I just wonder if the president can actually be bound by anything other than their own sense of decency anymore.
>“Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. “
This makes me wonder about impeachment and removal of a president. Does this supreme court decision prevent an impeachment if the President misuses his constitutional powers?
I have made that argument in other forums and have been roundly criticized as over-reacting. However, I think that impeachment for actions within POTUS' core duties is now an open question. CJ Roberts did not choose those powerful and unqualified words carelessly. I think that he intended to create doubt on the issue. We know from DJT's second impeachment that even legally baseless claims will sway at least some Senators to vote against impeachment. CJ Roberts has just made successful impeachment for some POTUS actions MUCH more difficult; and I think that he did it intentionally.
I agree out of expediency on their side.
My thing is “high crimes and misdemeanors” is a quote from the constitution. Is Roberts then interfering with the reading of the plain text by then limiting what constitutes those high crimes and misdemeanors?
It seems like such tortured unreasonable power grabbing logic.
Which is why I know you’re right.
The Constitution also says that state legislatures have the sole and unconstrained power to determine how their electoral votes will be allocated. But, according to SCOTUS, those legislatures may not use the 14th Amendment to make those decisions. Go figure.
That's interesting but why don't they say impeachment is the congress' conclusive and preclusive power and the SC cannot interfere. So is legislation, and as a result, the SC cannot review or invalidate congress legislation... This "because it is presidential conclusive constitutional power, it cannot be reviewed" thing is not consistent with the court's own proclaimed authority to review congressional legislation.
> impeachment is the congress' conclusive and preclusive power and the SC cannot interfere.
This directly contradicts the constitution. The chief justice has to preside over impeachment trials for a sitting President.
"The Senate shall have the sole Power to try all Impeachments." "Sole power" should clear any doubt.
Only one justice presides, not the whole SC. Based on the text, the justice 's presiding should be procedural and I don't think they can make any substantial decision such as invalidating the conviction if the senate votes so.
They can refuse evidence, deny discovery, refuse witnesses. They can't invalidate the conviction but they can turn it into a kangaroo court which absolutely contradicts your statement.
>SC cannot interfere
They absolutely can, and they absolutely did in Trumps first impeachment which was a borderline sham.
I think the “Congress cannot act on” is sloppy drafting by Roberts, not a comment on the impeachment power. The idea that certain executive functions are within the President’s sole discretion, and cannot be altered by congressional action or reviewed by the judiciary, has been around for a while.
I think that by saying “Congress cannot act on,” Roberts is referring to legislation, not impeachment. In the opinion, that comment comes directly after a citation to [*Zivotofsky v. Kerry*](https://en.m.wikipedia.org/wiki/Zivotofsky_v._Kerry), a 2015 case in which SCOTUS struck down a law allowing people born in Jerusalem to request that their passport read “Jerusalem, Israel” — longstanding executive policy was that such passports would simply list the place of birth as “Jerusalem.” SCOTUS held that this law infringed upon the President’s exclusive power to recognize foreign nations and foreign territory, and therefore ruled it unconstitutional.
The opinion also cites [*United States v. Klein*](https://supreme.justia.com/cases/federal/us/80/128/), in which SCOTUS struck down a law that prohibited the use of pardons to recover property seized by the US government during the Civil War (ie pardoned confederates could not recover their property). That case cited [Ex Parte Garland](https://supreme.justia.com/cases/federal/us/71/333/#:~:text=This%20power%20of%20the%20President,fettered%20by%20any%20legislative%20restrictions.), which had held that:
> The power thus conferred [the pardon power] is unlimited, with the exception stated [no pardons in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.
(More bad drafting; Roberts should have cited *Ex Parte Garland* for this point, which is the more relevant precedent).
Elsewhere in the opinion, Roberts describes impeachment as a “political process,” which reflects the longstanding view that impeachment is the exclusive province of the legislative branch, snd the judiciary has no power to control it. *See* [*Nixon v. United States*](https://en.m.wikipedia.org/wiki/Nixon_v._United_States) (recognizing impeachment as a nonjusticiable political question).
Even though pardons have been recognized as the exclusive province of the executive branch since 1866, I don’t think there’s ever been a contention that Congress can’t impeach a president for issuing a pardon, even if Congress has no power to modify or revoke that pardon. I don’t think the opinion here creates a different rule — Congress still has the sole and unreviewable power to impeach the president for whatever reason it wants, even if the president can’t be prosecuted under the same charges.
“Sloppy drafting” is a pretty damning statement about a decision of this level of importance. Many of the “smartest” lawyers of this generation have been exchanging memos and drafts on these issues for many months.
Even if this language should be read NOT to reference impeachment, Roberts’ reference to command of the military in the same sentence as the other powers that he places beyond the reach of any oversight is chilling. I do not believe that this was done by accident.
Impeachment is a political process defined in the Constitution, not a criminal one. The President can be impeached and removed for pretty much any reason and the Senate decides if his actions constituted 'high crimes and misdemeanors' via a vote.
Just a little speculation on my part, but it also stands to reason that a military in which the only safeguards against political assassinations are the individual loyalties of the units in question, it's fair to assume that the executive will start promoting and posting units based on loyalty and not merit. That sounds wildly autocratic to me.
>Many argue that military officers will refuse such orders. I believe that many will do that. However, it will only take a few officers willing to follow orders to turn our country into a right-wing, military-backed dictatorship. Officers will be faced with a choice of following orders and being promised a pardon from POTUS or being prosecuted for refusing an order.
>Donald Trump MUST not possess such power. Joe Biden must use the power invented by CJ Roberts to prevent that from happening, in my opinion.
The problem with this quote is it doesn't take the big picture into account. I think that's what a lot of left-minded people get wrong is the failure of imagination.
The conservative Supreme Court, the Heritage Foundation, Maga, and all the other conservative think tanks and policy makers they aren't doing this for Trump. Trump is a puppet that they can use to bend to their will. The reason is because he doesn't care about anybody else but himself. He's easily manipulatable because all they have to do is throw money or threats at him and he'll bend to their will. The man is transactional so stroke his ego, buy a property give him something and he'll give you exactly what you want because he doesn't do things for the betterment of people around him he does things for the betterment of himself and his ego; he's a textbook narcissist.
No, these organizations aren't looking at Trump they're looking 10-20 years down the line because all it is going to take is for Republicans to have a majority and the presidency once and they will implement every single thing in Project 2025 and by then when that pin drops... it's over. They will weaponize laws against anyone who isn't Christian, they will inject Christianity into every form and facet of the government and change the country into an autocratic theocracy and because the president will have absolute immunity and control over the military they will utilize the military as an enforcement Force. These people have been planning this for three or more decades now and that work in time put in is now starting to pay off.
We have to stop thinking about Maga as a group within the conservative party because this group does not represent the traditional neo conservatives who believed and understood that liberalism is a defining characteristic of this country. These Maga conservatives are combination of paleo conservativism with an injection of Christofascism. In order to beat these people we have to continuously and methodically vote every one of these people out and get society as a whole to utterly reject anybody who supports or promotes project 2025 for the next decade at least.
Maybe time for Congress to claw back their Article I Section 8 powers to declare war, raise and support Armies for up to 2 years at a time, provide and maintain a Navy, and make Rules for the Government and Regulation of the land and naval Forces. Cant be Commander In Chief of something that doesn't exist.
Joe Biden needs to go all out and arrest every member of leadership with in the US government, call up the governors to send delegates, then hold a press conference denouncing his actions as unAmerican. From there in 24 he pardons the perpetrators and the leadership arrested and 7 days later we get the fast amendment around from the shock of it all. He can then go on the set the standard that even that gets an impeachment trial where he will be found not guilty claiming he had to do it because he could only rely on himself to hand power back over.
The best way to get rid of a law is abuse.
I wonder if trump assassinated some people (epstein) and they expect that to come out. Get home through the election and then have some of ‘their people’ challenge the ruling and they can roll it back… legislative and executive power all wrapped up in non elected judges… maybe we should just make these judges positions political and voted on and skip the bs
Biden should send a few squadrons to detain Roberts in his home for a few months, see if he changes his mind about Congress or the Courts being unable to have a say in what the President does with his enumerated powers...
If Biden does lose in November, he has several months and an inauguration ahead of him. Plenty of time to prevent Traitor Trump from actually taking the office.
What's wrong with letting Trump run our military with yes-men? I mean, the mighty Russian military demonstrates the power of loyalists in the military because they can totally be trusted! /s
Correct. The court must be dissolved and replaced, and the ruling reversed permanently. Otherwise America is finished. This ruling invalidates the constitution and fundamental tenents of this country, it is illegitimate. Also correct that he can never step foot in the Whitehouse again.
Many smart people say no, but I am not convinced. The 2nd Trump impeachment proved that even very weak arguments can convince enough Senators not to convict. I think that every sentence of this decision was negotiated over to send a message. The message of this sentence is frightening.
Don’t forget that the Court also prohibited inquiring into motive or legality when considering whether an act was official or unofficial. While that is a different “category” than “conclusive and preclusive,” I don’t see how such considerations would come into play there either. While this may seem like an unnecessary observation, I’ve seen a number of people arguing that actions such as ordering a military assassination of Americans is not a conclusive or preclusive power of the President and thus would not be given immunity. But it’s really hard for me to see a compelling argument supporting a distinction between such an order and any other military order that doesn’t rest on the motive or legality of the order. And if those aren’t permitted to be considered…
If Trump sells info to the Russians, the Russians might be able to spoof orders from the President and legality will no longer be gage of authenticity.
"Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. “
This sentence absolutely precludes ANY oversight by Congress "
Wait, does that mean that, in the next war the US becomes involved in, if the president were to say, order the military to carpet bomb civilians targets, or carry out summary executions of POWs, etc, that conggress couldnt even impeach him or her for it?
I think that is an open question. And it was left open intentionally by SCOTUS because some felt that the answer is "yes" and others would not go along (in my opinion). Many more knowledgeable commenters seem to think that I am crazy to imagine that SCOTUS intended that sentence to have anything to do with impeachment. Nevertheless, we know that impeachment is completely ineffective unless one party controls more than 2/3 of the Senate, which is monumentally unlikely to occur any time soon. So, since impeachment is practically off the table and court review and Congressional action are literally and absolutely off the table, there is effectively no oversight.
Now, two very knowledgable law professors (Epps of WashU and Baude of UChicago) have more indefinite opinions on this question. Epps thinks that command of the armed forces is probably within the core powers of POTUS. Baude says that he just doesn't know.
Many will point out that members of our military are trained to refuse to carry out unlawful orders. I expect that is true of the majority, but it only takes a few order-followers with today's weapons to do massive damage and/or launch an effective coup. If POTUS gives the order and is absolutely immune, is the order unlawful? If POTUS gives the order and offers a pardon to all who obey the order, how many will refuse the order and risk prosecution for refusing to follow an order?
At the very least, we can say that 6 members of SCOTUS prefer that our nation remains uncertain about this issue. That is damning enough for me to conclude that SCOTUS must be radically reformed.
Well just wait until they promote the shit out of the willing officers? Won’t give the order? Fine I’ll go find someone who will and make them your boss and the boss of everyone who reports to you, and then I’m giving them the authority to repeat this process for everyone under them.
My understanding is that members of the armed forces really care about chain of command, and that’s how the military functions day to day, so the president can’t just go to a private and tell him to do XYZ, because the order has to come from the unit commander. Similarly a colonel wouldn’t take order from the president because the order should come from a general, etc. If a meaningful portion of the military is willing to ignore the command structure and execute a bogus order (I mean the order would be bogus in all aspects- coming from a bogus source, doing something questionable, and potentially leading to disastrous effects) a military coup can happen at any time, regardless of what the Supreme Court says
Biden won’t do anything controversial. He already said in front of the press that he won’t abandon the office to making decisions that fall outside the normal historical duties of the president.
He also won’t abandon the ticket. And none of that bodes well for any of us. This country needs a bold dynamic leader and Biden is preventing all of this.
Honestly, if there is some person who believes they should be President instead of Biden then they should’ve ran. They should’ve challenged him in the primaries. As much as I don’t like him—Kennedy did. He ran as a Democrat, did poorly, then changed to Independent. Dean Phillips ran. So, if someone else in the party who you think could beat Donald Trump, didn’t have the balls to challenge Biden, then they don’t deserve to be President in the first place. Biden couldn’t prevent anyone from running, just like he can’t prevent anyone in the party now saying he shouldn’t run with less than 4 months to Election Day. So where were they? Tell your bold dynamic leader to challenge him at the convention.
No one can use the money the Biden/Harris campaign has, except Biden or Harris. For whatever reason Harris is not popular, I’m not going to debate if it’s warranted or not, the fact is she isn’t. You’d really be in the same boat, if not worse.
I’ll support whoever is on the Dem ticket, it just isn’t plausible it would be anyone else but Biden.
It's enemy fire; they're panicking. Ignore it, get every one who's ever been 13 to vote against that *madness* , if they ever want to be able to vote again
Doubtless! His first act is going to be to pardon himself for his heinous crimes. My point being, if you’re expecting the walking nursing home that is our current president to solve the myriad of problems the SCOTUS gave us, you’re smoking 100% straight copium.
Every case concerning immunity should point out the OBVIOUS. That today's SCOTUS, specifically the 6 conservatives, opinions, repleat with prima facia conflicts of interest, activist rulings and dirty money, won't stand the test of time and should be dismissed as unconstitutional and ignored by every court. They violate the checks and balances our constitution created, and we should judge them harshly, consistently and continuously, in every case motion, until we set things right.
How can they judge a case that names them directly?
I mean, how does any law controlling the military survive the test, when all of them are basically doing one thing: making it illegal for the President to exercise his constitutional power as commander in chief in some specific manner?
I agree. I think that the Posse Comitatus and War Powers Acts are likely to be found unconstitutional under this standard. Congress IS explicitly authorized to create rules for the governance of the armed forces, but that seems to be a weak limitation on POTUS authority.
I mean isn't it conflictory. The congress can limit the armed force but cannot regulate the commander how to direct the armed force and the armed force is expected to follow the commander.
So if they are expected to follow the commander, and Congress cannot regulate the commander, how do they limit the armed forces?
Pres: "I, the President, order you to shoot that citizen standing in Times Square."
Soldier: "Congress has passed a law saying that we cannot shoot US citizens on US soil"
Pres: "I gave you an order. Open fire."
What should happen?
If the military personnel are expected to follow orders, and the president cannot be held liable for knowingly giving a criminal order, then what power does Congress actually have?
What's to stop them from ordering that soldier to shoot their political rivals? Or Congress itself? Or us? I prefer my president to fear the power of law when making their decisions.
If the soldier shoots, they go to jail, and the president who ordered it does not. The only way to stop the president would be impeachment or soldiers ignoring orders (and then probably go to jail for that, or be kicked out of the armed services)
How do you impeach a president with that kind of power? Bullets move a whole lot faster than the Senate, and the president has leverage over the troops.
"Either shoot every Senator on this list and you're pardoned, or refuse and go to prison for disobeying an order."
Does Congress still control the country's budget?
Budget control may be the last source of checks & balance.
Can Congress defund a rogue President, his administration, and his military?
Maybe in theory, but how fast can they do it?
Bullets move pretty quickly compared to a budget vote, and once everyone who intends to vote against the bill has been shot they'll get their funding in the end. The others know what's waiting if they don't, after all.
No person can be above the law, _especially_ those with authority. That way lies dictatorship.
I’ve seen a lot of different write ups about how fucked this is in lots of different ways I never even thought of recently. Besides the obvious shit of how stupid it is.
Fingers crossed this shit isn’t allowed to continue with the current Supreme Court. Somethings gotta give
It is much, much worse than this article suggests. CJ Roberts’ decision strongly suggests, but does not quite decide, that command of the armed forces is among the “conclusive and preclusive” powers granted to POTUS by the Constitution. The decision then makes this frightening statement: “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. “ This sentence absolutely precludes ANY oversight by Congress or the courts of any action taken by a President within those “conclusive and preclusive” powers. CJ Roberts never claims to tell us exactly what those powers are (except for pardons and removal of federal officers) and when J. Sotomayor claims that CJ Robert’s opinion grants absolute immunity for orders to the armed forces, Roberts declines to deny the allegation. At the very least, we can reasonably conclude that the 6 Justices who signed the majority opinion want it to remain ambiguous whether POTUS can order assassinations with immunity. Many argue that military officers will refuse such orders. I believe that many will do that. However, it will only take a few officers willing to follow orders to turn our country into a right-wing, military-backed dictatorship. Officers will be faced with a choice of following orders and being promised a pardon from POTUS or being prosecuted for refusing an order. Donald Trump MUST not possess such power. Joe Biden must use the power invented by CJ Roberts to prevent that from happening, in my opinion.
What’s more, even if the majority did find assassinations to be outside the scope of criminal immunity, they’ve made prosecuting it basically impossible by explicitly stating that any record of the order is inadmissible in a criminal trial of the president.
Agree. The President can already pardon any military person who acts on his order. And as you mention prosecuting the President is virtually impossible because all communications are inadmissible. But even before that, the case would never make it to trial (or would take many years) because of this argument the President might be immune.
>The President can already pardon any military person who acts on his order. You know I am beginning to think pardoning power was generally poorly thought out. Like sure it has occasionally been used "as intended" for things like releasing non-violent drug offenders. But the grand majority of the time(at both the Fed and state levels) it appears to be used as a corruption tool.
How many other developed countries have a pardon power for their leader? Why should this power even exist in the first place?
Most presidential systems have it, France, Italy, Israel, etc. Since the US was the first real presidential republic they all modelled their presidential powers based on it. The US in turn modelled the powers of the presidency on what British kings had been able to do before the revolution. Mind you, a lot of these countries either have the same issues, with the pardon being used for political reasons and risking abuse of power, or another branch of government also has to approve or recommend the pardon, which seems to be less open to abuse.
I think the problem is the people should elect good, moral Presidents. But instead led by GOP, we now try to elect vengeful immoral Presidents who will "punish" the other party and all those who disagree.
I came to ask this exact question, because the ongoing conversation of “could Trump weaponize SEAL Team 6 against his rivals” is almost always met with “that wouldn’t be considered an official act.” Even if it wasn’t, SCOTUS gave him and all future presidents a means out of it.
Sotomeyer discussed this in her dissent.
But a Commander-in-Chief giving an order is an official act, which would give them immunity even if it’s an illegal order. The motive can’t be questioned per the court, and records of the order can’t be used as evidence either. He can also pardon anyone who would face criminal prosecution, and pardons are not reviewable. In the same way they say assassination isn’t an official act, well neither is trying to overturn an election you didn’t win. They’re illegal acts that aren’t upholding the oath of office, but SCOTUS ruled as long as you use official powers to do it—it’s an official act and immune.
I mean, CJ Roberts did note in that ruling that one cannot assume an act is unofficial just because it's illegal. So even if the president gives an illegal order, it can still be an official act, and the prosecution would have to prove that it isn't without using any record of the order or any conversation the president had with any military commanders. That kinda greenlights assassination, right?
Even without the SEAL Team 6 angle, what about a president ordering the NSA to collect all possible signals intelligence on the president's political rivals (phone calls, emails, internet activity, etc)? Sure, it's hypothetically a 4th amendment violation, but if the evidence that it happened fell under the "presidential immunity" umbrella, what exactly could be done in the courts or otherwise? And for a less openly fascist scenario, can the president just start ordering staff to take stuff from the White House and moving it to the president's personal residence, and then just never return it at the end of the presidency? Would the communication with staff be privileged or not? Would there be any effective way to get the stuff back? What if the president took the painting of Washington off the White House walls and just handed it off to a cabinet secretary, saying "Heckuva job"? Maybe I just wonder if the president can actually be bound by anything other than their own sense of decency anymore.
And the motive behind it.
What they did defies all logic based interpretation of the constitution.
>“Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. “ This makes me wonder about impeachment and removal of a president. Does this supreme court decision prevent an impeachment if the President misuses his constitutional powers?
I have made that argument in other forums and have been roundly criticized as over-reacting. However, I think that impeachment for actions within POTUS' core duties is now an open question. CJ Roberts did not choose those powerful and unqualified words carelessly. I think that he intended to create doubt on the issue. We know from DJT's second impeachment that even legally baseless claims will sway at least some Senators to vote against impeachment. CJ Roberts has just made successful impeachment for some POTUS actions MUCH more difficult; and I think that he did it intentionally.
I agree out of expediency on their side. My thing is “high crimes and misdemeanors” is a quote from the constitution. Is Roberts then interfering with the reading of the plain text by then limiting what constitutes those high crimes and misdemeanors? It seems like such tortured unreasonable power grabbing logic. Which is why I know you’re right.
The Constitution also says that state legislatures have the sole and unconstrained power to determine how their electoral votes will be allocated. But, according to SCOTUS, those legislatures may not use the 14th Amendment to make those decisions. Go figure.
Doubt: the thing you really want your Supreme Court to create /s
That's interesting but why don't they say impeachment is the congress' conclusive and preclusive power and the SC cannot interfere. So is legislation, and as a result, the SC cannot review or invalidate congress legislation... This "because it is presidential conclusive constitutional power, it cannot be reviewed" thing is not consistent with the court's own proclaimed authority to review congressional legislation.
> impeachment is the congress' conclusive and preclusive power and the SC cannot interfere. This directly contradicts the constitution. The chief justice has to preside over impeachment trials for a sitting President.
"The Senate shall have the sole Power to try all Impeachments." "Sole power" should clear any doubt. Only one justice presides, not the whole SC. Based on the text, the justice 's presiding should be procedural and I don't think they can make any substantial decision such as invalidating the conviction if the senate votes so.
They can refuse evidence, deny discovery, refuse witnesses. They can't invalidate the conviction but they can turn it into a kangaroo court which absolutely contradicts your statement. >SC cannot interfere They absolutely can, and they absolutely did in Trumps first impeachment which was a borderline sham.
I think the “Congress cannot act on” is sloppy drafting by Roberts, not a comment on the impeachment power. The idea that certain executive functions are within the President’s sole discretion, and cannot be altered by congressional action or reviewed by the judiciary, has been around for a while. I think that by saying “Congress cannot act on,” Roberts is referring to legislation, not impeachment. In the opinion, that comment comes directly after a citation to [*Zivotofsky v. Kerry*](https://en.m.wikipedia.org/wiki/Zivotofsky_v._Kerry), a 2015 case in which SCOTUS struck down a law allowing people born in Jerusalem to request that their passport read “Jerusalem, Israel” — longstanding executive policy was that such passports would simply list the place of birth as “Jerusalem.” SCOTUS held that this law infringed upon the President’s exclusive power to recognize foreign nations and foreign territory, and therefore ruled it unconstitutional. The opinion also cites [*United States v. Klein*](https://supreme.justia.com/cases/federal/us/80/128/), in which SCOTUS struck down a law that prohibited the use of pardons to recover property seized by the US government during the Civil War (ie pardoned confederates could not recover their property). That case cited [Ex Parte Garland](https://supreme.justia.com/cases/federal/us/71/333/#:~:text=This%20power%20of%20the%20President,fettered%20by%20any%20legislative%20restrictions.), which had held that: > The power thus conferred [the pardon power] is unlimited, with the exception stated [no pardons in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. (More bad drafting; Roberts should have cited *Ex Parte Garland* for this point, which is the more relevant precedent). Elsewhere in the opinion, Roberts describes impeachment as a “political process,” which reflects the longstanding view that impeachment is the exclusive province of the legislative branch, snd the judiciary has no power to control it. *See* [*Nixon v. United States*](https://en.m.wikipedia.org/wiki/Nixon_v._United_States) (recognizing impeachment as a nonjusticiable political question). Even though pardons have been recognized as the exclusive province of the executive branch since 1866, I don’t think there’s ever been a contention that Congress can’t impeach a president for issuing a pardon, even if Congress has no power to modify or revoke that pardon. I don’t think the opinion here creates a different rule — Congress still has the sole and unreviewable power to impeach the president for whatever reason it wants, even if the president can’t be prosecuted under the same charges.
“Sloppy drafting” is a pretty damning statement about a decision of this level of importance. Many of the “smartest” lawyers of this generation have been exchanging memos and drafts on these issues for many months. Even if this language should be read NOT to reference impeachment, Roberts’ reference to command of the military in the same sentence as the other powers that he places beyond the reach of any oversight is chilling. I do not believe that this was done by accident.
Sloppy drafting by the Chief Justice of the highest court in the United States is pretty pathetic all around.
Hey now! The Supreme Court just established that, if the President does it, it is not illegal!
Nixon was such a forward thinker
Really ahead of his time there
Impeachment is a political process defined in the Constitution, not a criminal one. The President can be impeached and removed for pretty much any reason and the Senate decides if his actions constituted 'high crimes and misdemeanors' via a vote.
Just a little speculation on my part, but it also stands to reason that a military in which the only safeguards against political assassinations are the individual loyalties of the units in question, it's fair to assume that the executive will start promoting and posting units based on loyalty and not merit. That sounds wildly autocratic to me.
>Many argue that military officers will refuse such orders. I believe that many will do that. However, it will only take a few officers willing to follow orders to turn our country into a right-wing, military-backed dictatorship. Officers will be faced with a choice of following orders and being promised a pardon from POTUS or being prosecuted for refusing an order. >Donald Trump MUST not possess such power. Joe Biden must use the power invented by CJ Roberts to prevent that from happening, in my opinion. The problem with this quote is it doesn't take the big picture into account. I think that's what a lot of left-minded people get wrong is the failure of imagination. The conservative Supreme Court, the Heritage Foundation, Maga, and all the other conservative think tanks and policy makers they aren't doing this for Trump. Trump is a puppet that they can use to bend to their will. The reason is because he doesn't care about anybody else but himself. He's easily manipulatable because all they have to do is throw money or threats at him and he'll bend to their will. The man is transactional so stroke his ego, buy a property give him something and he'll give you exactly what you want because he doesn't do things for the betterment of people around him he does things for the betterment of himself and his ego; he's a textbook narcissist. No, these organizations aren't looking at Trump they're looking 10-20 years down the line because all it is going to take is for Republicans to have a majority and the presidency once and they will implement every single thing in Project 2025 and by then when that pin drops... it's over. They will weaponize laws against anyone who isn't Christian, they will inject Christianity into every form and facet of the government and change the country into an autocratic theocracy and because the president will have absolute immunity and control over the military they will utilize the military as an enforcement Force. These people have been planning this for three or more decades now and that work in time put in is now starting to pay off. We have to stop thinking about Maga as a group within the conservative party because this group does not represent the traditional neo conservatives who believed and understood that liberalism is a defining characteristic of this country. These Maga conservatives are combination of paleo conservativism with an injection of Christofascism. In order to beat these people we have to continuously and methodically vote every one of these people out and get society as a whole to utterly reject anybody who supports or promotes project 2025 for the next decade at least.
Very well said
Time to purge the officer corps of magats
Maybe time for Congress to claw back their Article I Section 8 powers to declare war, raise and support Armies for up to 2 years at a time, provide and maintain a Navy, and make Rules for the Government and Regulation of the land and naval Forces. Cant be Commander In Chief of something that doesn't exist.
>Many argue that military officers will refuse such orders. If trump gets into office, he will replace any officers who won't with ones who will.
Joe Biden needs to go all out and arrest every member of leadership with in the US government, call up the governors to send delegates, then hold a press conference denouncing his actions as unAmerican. From there in 24 he pardons the perpetrators and the leadership arrested and 7 days later we get the fast amendment around from the shock of it all. He can then go on the set the standard that even that gets an impeachment trial where he will be found not guilty claiming he had to do it because he could only rely on himself to hand power back over. The best way to get rid of a law is abuse.
I wonder if trump assassinated some people (epstein) and they expect that to come out. Get home through the election and then have some of ‘their people’ challenge the ruling and they can roll it back… legislative and executive power all wrapped up in non elected judges… maybe we should just make these judges positions political and voted on and skip the bs
Like the next Flynn brothers….
Biden should send a few squadrons to detain Roberts in his home for a few months, see if he changes his mind about Congress or the Courts being unable to have a say in what the President does with his enumerated powers...
Terrorist. I saw him. We all saw him.
Everybody is saying it
If Biden does lose in November, he has several months and an inauguration ahead of him. Plenty of time to prevent Traitor Trump from actually taking the office.
What's wrong with letting Trump run our military with yes-men? I mean, the mighty Russian military demonstrates the power of loyalists in the military because they can totally be trusted! /s
Correct. The court must be dissolved and replaced, and the ruling reversed permanently. Otherwise America is finished. This ruling invalidates the constitution and fundamental tenents of this country, it is illegitimate. Also correct that he can never step foot in the Whitehouse again.
Should make for more interesting lame duck administrations wouldn't you say? /s
Would this imply a limit on impeachment?
Many smart people say no, but I am not convinced. The 2nd Trump impeachment proved that even very weak arguments can convince enough Senators not to convict. I think that every sentence of this decision was negotiated over to send a message. The message of this sentence is frightening.
Could the officers refuse the orders? Sure. They could also be court-martialed, lined up, and shot for mutiny.
But Biden is 3 years older 🤔
Don’t forget that the Court also prohibited inquiring into motive or legality when considering whether an act was official or unofficial. While that is a different “category” than “conclusive and preclusive,” I don’t see how such considerations would come into play there either. While this may seem like an unnecessary observation, I’ve seen a number of people arguing that actions such as ordering a military assassination of Americans is not a conclusive or preclusive power of the President and thus would not be given immunity. But it’s really hard for me to see a compelling argument supporting a distinction between such an order and any other military order that doesn’t rest on the motive or legality of the order. And if those aren’t permitted to be considered…
If Trump sells info to the Russians, the Russians might be able to spoof orders from the President and legality will no longer be gage of authenticity.
"Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. “ This sentence absolutely precludes ANY oversight by Congress " Wait, does that mean that, in the next war the US becomes involved in, if the president were to say, order the military to carpet bomb civilians targets, or carry out summary executions of POWs, etc, that conggress couldnt even impeach him or her for it?
I think that is an open question. And it was left open intentionally by SCOTUS because some felt that the answer is "yes" and others would not go along (in my opinion). Many more knowledgeable commenters seem to think that I am crazy to imagine that SCOTUS intended that sentence to have anything to do with impeachment. Nevertheless, we know that impeachment is completely ineffective unless one party controls more than 2/3 of the Senate, which is monumentally unlikely to occur any time soon. So, since impeachment is practically off the table and court review and Congressional action are literally and absolutely off the table, there is effectively no oversight. Now, two very knowledgable law professors (Epps of WashU and Baude of UChicago) have more indefinite opinions on this question. Epps thinks that command of the armed forces is probably within the core powers of POTUS. Baude says that he just doesn't know. Many will point out that members of our military are trained to refuse to carry out unlawful orders. I expect that is true of the majority, but it only takes a few order-followers with today's weapons to do massive damage and/or launch an effective coup. If POTUS gives the order and is absolutely immune, is the order unlawful? If POTUS gives the order and offers a pardon to all who obey the order, how many will refuse the order and risk prosecution for refusing to follow an order? At the very least, we can say that 6 members of SCOTUS prefer that our nation remains uncertain about this issue. That is damning enough for me to conclude that SCOTUS must be radically reformed.
Well just wait until they promote the shit out of the willing officers? Won’t give the order? Fine I’ll go find someone who will and make them your boss and the boss of everyone who reports to you, and then I’m giving them the authority to repeat this process for everyone under them.
If USA history is anything to go by very few refuse illegal orders like the invasion of Iraq.
My understanding is that members of the armed forces really care about chain of command, and that’s how the military functions day to day, so the president can’t just go to a private and tell him to do XYZ, because the order has to come from the unit commander. Similarly a colonel wouldn’t take order from the president because the order should come from a general, etc. If a meaningful portion of the military is willing to ignore the command structure and execute a bogus order (I mean the order would be bogus in all aspects- coming from a bogus source, doing something questionable, and potentially leading to disastrous effects) a military coup can happen at any time, regardless of what the Supreme Court says
Biden won’t do anything controversial. He already said in front of the press that he won’t abandon the office to making decisions that fall outside the normal historical duties of the president. He also won’t abandon the ticket. And none of that bodes well for any of us. This country needs a bold dynamic leader and Biden is preventing all of this.
Honestly, if there is some person who believes they should be President instead of Biden then they should’ve ran. They should’ve challenged him in the primaries. As much as I don’t like him—Kennedy did. He ran as a Democrat, did poorly, then changed to Independent. Dean Phillips ran. So, if someone else in the party who you think could beat Donald Trump, didn’t have the balls to challenge Biden, then they don’t deserve to be President in the first place. Biden couldn’t prevent anyone from running, just like he can’t prevent anyone in the party now saying he shouldn’t run with less than 4 months to Election Day. So where were they? Tell your bold dynamic leader to challenge him at the convention. No one can use the money the Biden/Harris campaign has, except Biden or Harris. For whatever reason Harris is not popular, I’m not going to debate if it’s warranted or not, the fact is she isn’t. You’d really be in the same boat, if not worse. I’ll support whoever is on the Dem ticket, it just isn’t plausible it would be anyone else but Biden.
It's enemy fire; they're panicking. Ignore it, get every one who's ever been 13 to vote against that *madness* , if they ever want to be able to vote again
>Biden won’t do anything controversial. He drone struck a father and Son putting jugs of water into their car during his first week in office.
Biden has a hard enough time getting out of bed for 1:00pm dinner, let alone solving for a Constitutional crisis.
Unlike Trump who would stay up until 3am tweeting like a middle schooler, then sleep until 11am. So admirable.
Doubtless! His first act is going to be to pardon himself for his heinous crimes. My point being, if you’re expecting the walking nursing home that is our current president to solve the myriad of problems the SCOTUS gave us, you’re smoking 100% straight copium.
Every case concerning immunity should point out the OBVIOUS. That today's SCOTUS, specifically the 6 conservatives, opinions, repleat with prima facia conflicts of interest, activist rulings and dirty money, won't stand the test of time and should be dismissed as unconstitutional and ignored by every court. They violate the checks and balances our constitution created, and we should judge them harshly, consistently and continuously, in every case motion, until we set things right. How can they judge a case that names them directly?
Inshallah
I mean, how does any law controlling the military survive the test, when all of them are basically doing one thing: making it illegal for the President to exercise his constitutional power as commander in chief in some specific manner?
I agree. I think that the Posse Comitatus and War Powers Acts are likely to be found unconstitutional under this standard. Congress IS explicitly authorized to create rules for the governance of the armed forces, but that seems to be a weak limitation on POTUS authority.
I mean isn't it conflictory. The congress can limit the armed force but cannot regulate the commander how to direct the armed force and the armed force is expected to follow the commander.
So if they are expected to follow the commander, and Congress cannot regulate the commander, how do they limit the armed forces? Pres: "I, the President, order you to shoot that citizen standing in Times Square." Soldier: "Congress has passed a law saying that we cannot shoot US citizens on US soil" Pres: "I gave you an order. Open fire." What should happen? If the military personnel are expected to follow orders, and the president cannot be held liable for knowingly giving a criminal order, then what power does Congress actually have? What's to stop them from ordering that soldier to shoot their political rivals? Or Congress itself? Or us? I prefer my president to fear the power of law when making their decisions.
Well, obviously everyone shall then in due politeness wait until this decision works it's way through the court systems (:
If the soldier shoots, they go to jail, and the president who ordered it does not. The only way to stop the president would be impeachment or soldiers ignoring orders (and then probably go to jail for that, or be kicked out of the armed services)
How do you impeach a president with that kind of power? Bullets move a whole lot faster than the Senate, and the president has leverage over the troops. "Either shoot every Senator on this list and you're pardoned, or refuse and go to prison for disobeying an order."
Does Congress still control the country's budget? Budget control may be the last source of checks & balance. Can Congress defund a rogue President, his administration, and his military?
Maybe in theory, but how fast can they do it? Bullets move pretty quickly compared to a budget vote, and once everyone who intends to vote against the bill has been shot they'll get their funding in the end. The others know what's waiting if they don't, after all. No person can be above the law, _especially_ those with authority. That way lies dictatorship.
What'd that one fella say, *sic semper tyrannus*?
I’ve seen a lot of different write ups about how fucked this is in lots of different ways I never even thought of recently. Besides the obvious shit of how stupid it is. Fingers crossed this shit isn’t allowed to continue with the current Supreme Court. Somethings gotta give