The Supreme Court literally said that Trump has absolute immunity for criminal use of presidential power. Combined with the statistical impossibility of a 2/3 senate majority for impeachment, this is a license to grab as much power as that same court will allow.
What's kind of fascinating is the way they've introduced things like the Major Questions Doctrine (MQD), which asserted the importance (really, necessity, in their view) of Congress's explicit delegation powers, as a way to curtail agency actions. But then faced with something like this EO, they seem quite obviously faced with something that runs up against the fact the Congress gave explicit statutes for how and what they should do. As far as I'm aware, the statues creating these agencies don't explicitly give the president this power...which raises a clear MQD consistency issue for the supreme court.
It’s not fascinating in any way, it’s completely habitual for fascists to use every means at their disposal to prevent their opponents from doing anything only to ignore all roadblocks when in power.
The GOP has been ramping up their support of unitary executive theory since the 80s yet no democratic president has been able to take a piss without cries of tyranny.
There are three branches. Just three. If you are a federal employee, you either work for congress, the courts, or the president. A2S1 invests the president with all executive power. All of it. It doesn’t carve out exceptions for the SEC or the Federal Reserve or USAID.
If you’ve put yourself in a place where this arrangement is literally fascism, prepare to be disappointed by the courts.
However you read the constitution it's not the way courts interpret constitution now. Unitary executive branch doesn't exist for last ~135 years, and was under scrutiny before that (and with way smaller federal government).
With current supreme court nothing is sacred for sure, but overturning this and granting universal executive power into hands of president would be a disaster leading towards either authocracy or revolution. And yeah - that's all very similar to how fascism started, whether you would like to see it or not.
Pretty hard to square this perspective with the recent Raimondo decision, no?
Is the EPA, at the direction of the sitting president, making rules about coal power plants not an example of the use of "all executive power. All of it."? Or does A2S1 carve out exceptions for the EPA, even if it doesn't for those other agencies?
Whatever you think about Chevron deference or the specific EPA case I'm alluding to, the point is: The balance of power between the executive and legislative branches is nowhere near as clear cut as your comment suggests. Congress frequently legislates the structure and responsibilities of executive agencies. Presidential administrators cannot legally change those responsibilities unilaterally.
Making rules sounds awfully like legislation, which is a job for the legislature rather than the executive. Arguably, the executive can only regulate the executive, and Congress has to pass laws which apply to the populace at large.
That’s certainly not the way things have been run for a long time, but it doesn’t seem irrational to argue that’s the proper constitutional structure.
The legislature is well within its rights to delegate rulemaking authority. (I recognize that non-delegation is a live debate, but I think it's a silly one.) But the executive has to make those rules within the bounds of the delegated authority.
Article I, Section I states ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives’; it says nothing about delegating those powers to independent agencies or to executive agencies. None of Congress’s enumerated powers state or imply that it may delegate its power to anyone else.
It would be pretty surprising if a law passed by Congress delegating to Charles Windsor its power to write the laws about taxes, borrowing money on the credit of the United States, regulating international and interstate commerce and so forth were constitutional.
> None of Congress’s enumerated powers state or imply that it may delegate its power to anyone else.
That may be what you believe, and there's been a lot of debate over that, but courts have time and time again ruled that the legislature can delegate power. Maybe current SCOTUS will reverse a lot of that, but that remains to be seen.
It's a bit more murky and nuanced than that, though.
What is executive power? Well, it's what the constitution says it is. But a lot of things in the executive branch aren't spelled out in the constitution. A more strict interpretation of it (one that SCOTUS seems to be moving toward, at least when it's convenient to achieve conservative policy goals) is that Congress should not be delegating so much rulemaking power to the executive branch.
So let's say you're the SEC. You're an executive branch agency, but you essentially write laws. You get to write those laws because Congress delegated that power in some reasonably specific ways unique to your agency. So who do you really report to? Nominally, day to day, seems like the president. But you only exist because of an act of Congress. Congress can dissolve you tomorrow if it wants to. Congress can also give you more power and more latitude (within some limits, of course). So while you report to the president, you're accountable to Congress. That might mean that the president isn't allowed to fire your people without cause, if Congress specified so.
That's not an interference of executive power if the power you wield actually flows from the legislative branch.
yes but if the executive just pretends there is no issue does it matter
part of the supreme court hasn't exactly been known to defend the constitution in word and spirit but find excuses to reinterpret it
and worse by giving themself the right to authoritative misinterpreted law they can prevent any such cases ever appearing in front of the supreme court and/or very effectively blackmail people into not making or dismissing cases
and Trump abusing power to blackmail people to get changes in of court related proceeding (to ironically black mail someone else to force them to fall in line or a court case against them gets reopend/not dismissed) did already happen, openly in public just a few days ago
I think masklinn is arguing that, if Republican senators truly believed the president should be an elected king with nigh-limitless power, then during Democrat administrations they would have been eager to approve anything the president put forward, as he was the president-king at that time.
Whereas what we saw instead was them blocking everything they could, government shutdowns etc.
Unless "Unitary Executive" means something a good deal more nuanced than the president being king, that is.
I don't think that follows at all. Republicans, just like every party really, do the best given the system they are in. They don't act as if they are in the hypothetical system they would like to have, it would be totally counterproductive to their goals.
Think of it this way. I may be against paying taxes. That doesn't mean I just stop paying them. The best I can do is try to get the government to lower the taxes.
It was a while ago. But late last century the "line item veto" which allowed presidents to get rid of things in bills they didn't like was rejected by the courts. Oddly Reagan (R) asked for this power initially, but Clinton (D) ended up getting it.
"Congress granted this power to the president by the Line Item Veto Act of 1996 to control "pork barrel spending", but in 1998 the U.S. Supreme Court ruled the act to be unconstitutional in 6–3 decision in Clinton v. City of New York.
The court found that exercise of the line-item veto is tantamount to a unilateral amendment or repeal by the executive of only parts of statutes authorizing federal spending, and therefore violated the Presentment Clause of the United States Constitution. Thus a federal line-item veto, at least in this particular formulation, would only be possible through a constitutional amendment. Prior to that ruling, President Clinton applied the line-item veto to the federal budget 82 times."
Just because it took me a while to find the reference: The full quote on Truth Social and Twitter is "CONGESTION PRICING IS DEAD. Manhattan, and all of New York, is SAVED. LONG LIVE THE KING!"
They created the circumstances where this could happen. It's a long term project. Supreme court picks, disenfranchisement, propaganda, refusing to hold Trump accountable for his crimes.
Disbanding of both the legislature and judiciary would be on any dictator's playbook from the last N centuries. I can't imagine either of those bodies would be ok with getting shuttered but it seems they are both pushing for it. Why?
I don’t think that’s an accurate description of the decision. I think that it stated that when the President exercises core constitutional power (e.g. the pardon power, or the veto power) then the exercise itself cannot be illegal. I’m not sure if the decision of the Court left open the possibility that the conduct around the exercise of such power can be illegal. If so, then this could be a distinction without much difference: for example, issuing a pardon may not itself ever be criminal, but taking a bribe to issue a pardon is separate from issuing the pardon itself. To some extent, I think that some of this does flow from the structure of the Constitution itself, but I’m not convinced that phrasing it in terms of immunity is particularly helpful.
Then there’s a rebuttable presumption of immunity for more conduct. I don’t see that this flows from the Constitution, but perhaps it flows from judicial decisions over the past two centuries? ‘When the President does something official, he probably is immune, but maybe he’s not, and he could still be prosecuted from crimes he commits around the immune act’ doesn’t seem terribly meaningful.
It sounds a bit to me like saying that a citizen is immune from prosecution for his vote, but not for selling it or whatever. But I’m not a lawyer, and I could be wrong.
It 100% was written with the explicit purpose of giving Trump the power to do whatever he wants. Including ignoring the Supreme Court hilariously enough.
Anyway, the whole discussion is moot because Trump is turning America into a authoritarian state, so rules and laws and elections soon don’t matter anymore.
Well, yes, that's how the system works: a determined President can, in fact, grab as much power as the Supreme Court will allow. That's literally what the Supreme Court is there for.
The president can arguably pack the court and with his majorities nobody will stop him
If you believe the Supreme Court is an effective guardrail against tyranny then you're deeply mistaken. The only true safeguard against tyranny is the American people refusing to comply and responding with force of arms if pushed.
Assuming the US military remains loyal to the president... if you really think that the Proud Boys and their ilk, plus a bunch of random disorganized people with guns, have even the remotest chance of winning a war with the US military, well... I have a bridge I'd like to sell you.
And if the US military doesn't remain loyal to the president, then on top of a fascist dictator seizing power, then we'll have a military coup.
> And if the US military doesn't remain loyal to the president, then on top of a fascist dictator seizing power, then we'll have a military coup.
“Instead”, not “on top”. (I mean, unless the military installs a different fascist dictator, which is certainly not unheard of in military coups that are notionally countercoups.)
> if you really think that the Proud Boys and their ilk, plus a bunch of random disorganized people with guns, have even the remotest chance of winning a war with the US military, well... I have a bridge I'd like to sell you.
In Afghanistan, Iraq, and Vietnam, the enemy was—and, critically, the US forces were not—fighting for their homeland, and the US engaged in political decisions to limit operations because of that (and, in the case of Afghanistan, got distracted and fucked off to start an war of aggression in Iraq in the middle of it).
And still won in Iraq, first against Saddam’s regime, then the post-regime pre-ISIS insurgency, and then the later fight against ISIS, so I’m not sure why Iraq is included, absolute immorality of the decision to go to war there and its cost to the war in Afghanistan aside, since those are irrelevant to the discussion here.
I'm not a lawyer, but I don't see how legal immunity equates to legal authority.
If you are a government employee and Trump orders you to do something that exceeds his authority, can't you still say no? It seems like the Supreme Court only said that Trump can't get in trouble for asking. I don't think the court said that you have to answer yes.
I'm not trying to say that we're in a great position here or that immunity doesn't have some very destructive effects. But I am saying that we shouldn't act as if he has powers that the Supreme Court hasn't given him.
A competent Joe Biden would've taken that ruling, said "thank you very much" and "cleaned house" with Seal Team Six of select judges and politicians and then pardoned everyone involved.
The fact that SCOTUS wasn't even slightly concerned about that happening belies the problem: the Democrats are ineffectual by design. They knew Biden would throw his hands up citing "norms" and "institutions" as an excuse to do absolutely nothing.
SCOTUS completely invented a concept of presidential immunity out of thin air to derail the criminal prosecutions. They also deliberaly took their time. Remember when Jack Smith tried to appeal directly to SCOTUS because everyone knew it was going to end up there? Instead, SCOTUS put everything on hold for another 6 months as a delaying tactic.
Even then, the opinion is rushed and haphazard and not at all well thought out. Some in the conservative supermajority allegedly wanted to punt the issue to the next term.
The presidential immunity decision is so brazenly political. The Roberts court will go down in history for the kinds of awful decisions in the 1840s and 1850s that led up to the Civil War.
The Democrats are people who believe in the rule of law, and they act like it. When pitted against people who have no qualms to win at all costs, even it means breaking the law and destroying the constitution, Democrats lose; if you value those things you can't preserve them by destroying them yourself. We are where we are because Republicans convinced themselves they deserved the power they have taken. The people who voted for them were convinced as well. That's the only failure we should be talking about right now. The Democrats, flawed as they are, did the right thing.
That said, they will not be the people to lead us out of this. They know how to fundraise, campaign, and maintain the status quo. They're not built for this, so it's time to just look for someone new rather than try to reform people who are clearly not made for this moment.
In many situations, those who have morals and scruples will be ineffectual when faced with an adversary who has none. Biden didn't "clean house" because he believes in the rule of law, and believes that if he'd done that, he should go to jail, even if he wouldn't.
Not everyone has an ethical code that only exists because they're afraid they'll go to jail if they break it. Some people just don't think it's ok to do the wrong thing.
Put another way: if you become the monster you're trying to fight, that's often not materially different from the monster winning in the first place.
Having said that, I do think that Democrats should fight a little dirtier sometimes. I think that would be possible to do without becoming that monster.
Not even that. Trump controls federal law enforcement. If Congress or a federal court says "arrest cabinet member XYZ for contempt", Trump can just say "no".
Congress does have some law enforcement personnel, but I doubt they'd be interested in getting in a standoff with the Secret Service.
“Criminal use of presidential power” is a bit of an oxymoron, which is why people are getting wrapped up in knots here.
The Supreme Court said, if the Constitution authorizes the President to do it, then he can’t be criminally prosecuted. That doesn’t mean blanket immunity!
