Yesterday’s ruling in the presidential immunity case is generating the predictable hyperbolic reaction from the usual suspects. See, for example, Elie Mystal (“The President Can Now Assassinate You, Officially“) and, of course, Mark Joseph Stern (“Don’t Believe John Roberts. The Supreme Court Just Made the President a King.“). But even more sober analysts are concerned about slippery slopes. Two essays in the Atantic, by Quinta Jurecic (“Trump Secures His Get-Out-of-Jail-Free Card“) and Adam Serwer (“The Supreme Court Puts Trump Above the Law“) are worth the time.
Rather than extensively quoting from the above, though, I’m going to focus on two pieces that get to the core of the problem: a Constitutional system that provides solutions that, in practice, aren’t solutions are all.
Daniel Drezner (“The Rant of an Institutionalist“) devotes several paragraphs recounting recent blows to the American system of checks and balances before getting to the
stunning 6-3 decision in Trump v. United States. Writing for the majority, Chief Justice John Roberts declared that all Trump (as well as other presidents) “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” The ruling goes on to stipulate that examples of core constitutional powers include Trump’s efforts to persuade Mike Pence to not accept the Electoral College results in his capacity as Vice President. The ruling further stated that, “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” This means that Trump’s efforts to pressure DOJ officials into claiming election fraud where none existed are considered to be part of his core constitutional powers.
There is no way to sugarcoat the dangerous implications of this decision. It continues the agglomeration of presidential power at the expense of other countervailing institutions.
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What worries me about these latest SCOTUS rulings, however, is that if Trump is re-elected he could just choose to stay in power and the Supreme Court would reject any legal means to remove him from power because they would determine that no one had standing to do so.
That is insane pretzel logic, and yet I would not put it past this Supreme Court to make that decision. Earlier this year they rejected a plain-text reading of the 14th Amendment that would have disallowed Trump from running for the presidency for supporting an insurrection. The 22nd Amendment limits presidents to being elected to more than two terms, but it says nothing about a president serving more than two terms. This Supreme Court is revisionist enough to exploit that loophole.
I had always assumed that U.S, institutions ensured that American democracy would wind up with minmax outcome or better. In other words, even if horrible people are elected to high office, democratic structures imposed hard limits on the damage that they could do. Even during Trump’s first term, there was just enough juice in those countervailing institutions to prevent the worst of the worst from happening.
Those guardrails are gone now. If Trump wins in November, if Republicans win both houses of Congress, I have zero faith in any countervailing institution protecting civil liberties, the rule of law, or any of a hundred ontological givens that I had taken for granted all my life. In that outcome, the U.S. would shift to being a competitive authoritarian state.
Slate’s Richard L. Hasen (“Trump Immunity Ruling Will Be John Roberts’ Legacy to American Democracy“):
Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside.
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These justices were always thinking about an abstract problem that could occur in 2072 or 2114 with presidential power and not about the problems the United States faces today with the attempt at election subversion undertaken by Donald Trump and his allies in 2020.
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oberts plays the role of the faux minimalist, as he often likes to do, pretending that when he is making major changes in the law he is really doing very little. He did this, for example, in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act. There he told us that Congress could tinker and fix the formula used to figure out which states need federal supervision of their voting rules, and that there were other voting rights protections under the law. He wrote that knowing Congress would not act. The Roberts Court would then whittle away those other protections in subsequent years.
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Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive, slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.
Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.
For the sake of argument, let’s begin with the increasingly credulous assumption that the Republican appointees on the Court are simply interpreting the law as they see it rather than manufacturing their desired political outcomes. Through that lens, there is indeed an obtuseness to their rulings.
If you believe, as I do, that the Constitution as written by the Framers in 1787 and amended only a handful of times* since, is woefully inadequate for a 21st-century continental superpower and yet binding unless replaced or amended, we’re left with a hell of a Catch-22. The Framers created the Presidency with George Washington and and entirely different concept of Executive power in mind. And, as has been noted often here over the years, completely oblivious to the notion of party politics.
Their presumption was that the President, who would be selected by the gentry of the several states through the device of the Electoral College, would be an honorable man.** And, were that presumption to fail, the honorable men of the House would impeach him forthwith and the honorable men of the Senate would band together to banish them from office.
Thankfully, our Presidents have indeed mostly been honorable men. But partisan politics has all but guaranteed that, in the instances where that was not true, the Senate would not muster the necessary two-thirds vote for removal. There have thus far been four presidential impeachments (with Trump accounting for two of those) and zero removals. Indeed, prior to Trump, not a single Senator from the President’s party voted to convict and remove.
This fact caused a lot of consternation in the comments of my post, “SCOTUS on Presidential Immunity: It Depends.” It does no good to say that the remedy to a President committing crimes is impeachment if impeachment is effectively a dead letter. It is, alas, the only tool the Constitution provides for punishing a sitting President who commits high crimes and misdemeanors. It is, again, a Catch-22.
Similarly, the Constitutionally-correct response to so many Supreme Court rulings is that Congress has the power to remedy the issue through legislation. The fact that the Congress is largely dysfunctional and therefore will not in fact enact the remedying legislation is, in a theoretical world of a Supreme Court that merely interprets the Constitution without consideration of the political implications, a political problem solvable by political means. In reality, though, it won’t be.
In describing a system wherein “ambition is made to counteract ambition,” Drezner obliquely references Federalist 51. It is instructive.
he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
The very presumptions on which the entire edifice relies have been stood on their head.
First, partisanship, especially in the nationalized, sorted manner in which it has evolved in recent decades, means that members of the legislature are more beholden to a President of the same party (or organized in opposition to a President of the opposite party) than they are to the prerogatives of their own institution. Second, going back to at least the Great Depression, the Executive has been far and away the most powerful branch. Indeed, Congress simply can’t manage a modern state through the Constitutional design and has been forced to delegate much of its responsibility to Executive branch agencies.
I do disagree with Drezner on one point: the recent spate of Supreme Court have not all been in the direction of bolstering the Executive. Striking down Chevron deference, for example, clearly weakens the Executive at the expense of the Judiciary, the Article III courts in particular. And there’s good reason to fear that the next shoe to drop is the end of the administrative state altogether, which would radically limit the President’s ability to govern through executive orders.
At the theoretical level, I continue to think the broad outlines of yesterday’s decision are reasonable. Presidents ought to be able to exercise core Constitutional functions without fear of criminal sanction, either while in office or afterward. Presidents make weighty decision, often pushing the envelope on legality,*** and shouldn’t have the prospect of their political opponents weaponizing the justice system after they leave office.
Alas, the institutional safeguards are broken. Impeachment is essentially a dead letter because of partisanship. And, as recent events have made clear, the people themselves are not the answer. Trump’s attempts to steal the election, including inciting a riot in the Capitol, seem to have had no impact on his electability. Ditto findings by two separate juries that he committed sexual assault and dozens of counts of criminal fraud. Of course, the bastardized version of the Electoral College we use, filtering the popular vote through an institution designed for a completely different purpose, exacerbates the problem.
*That there are 27 amendments actually overstates how often it has happened. Numbers 1-10 and 27 were all part of the Bill of Rights proposed by the first Congress and can reasonably considered part of the main document, given that the measures were part of the grand bargain for ratification. Numbers 13-15 were the direct result of the Civil War and possible only because of Reconstruction and the former Confederate states being essentially bypassed. Numbers 18 and 21 institute and repeal Prohibition; together, they are a nullity. That leaves only 11, most of which were relatively minor tinkering or overreactions to short-term crises.
**The notion that the President could be a woman would have been laughable.
***Just the exercise of the War Powers alone elicits at least half a dozen examples.
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Author: James Joyner
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