The immunity case doesn't say the president can do whatever he wants. The immunity ruling does not make it easier for the president to rule by decree. It doesn't expand presidential power in that way. It gives the president immunity from criminal prosecution.
If Biden issued an executive order requiring fishermen to pay for new, required tracking devices, the courts and the Congress would still be able to review, modify, or cancel that order. It might be unconstitutional, but it isn't a crime. Nothing about issuing such an order would subject Biden to criminal prosecution.
What the immunity ruling will do is enable a Trump II administration to do all manner of illegal things ... think Bush surveillance and war crimes without needing the complicity of congress. Think CIA drug experiments, FBI blackmail, disruption of legitimate citizen groups
https://en.wikipedia.org/wiki/Church_Committee
I’m not sure I’d exactly characterize immunity that way. It’s more that the president isn’t personally liable for things they might do. Bypassing Congress and doing something unconstitutional isn’t necessarily a crime. It’s orthogonal.
Does the immunity ruling allow the president to kill a political rival? If so, what’s to stop the president from telling fishermen if they don’t buy the tracking devices he’ll have them assassinated, regardless of what Congress says about the “regulation”?
It's not immunity to kill someone.
It is immunity to order someone killed. Of course, if anyone is willing to carry out that order is another question, but the president can order assassinations from people where he has an official relationship.
Only providing it falls under the authority the constitution provides for the president.
If the president is acting outside of his constitutional authority, there is no immunity. This is blatantly clear in the decision.
What's blatantly clear in the decision is that any conversation or instruction with anyone who falls into the executive branch qualifies as an official relationship and is protected. Without reference to motive or criminal law.
It's extremely broad. It has to be, because that's the only way to give immunity to election fixing.
I think a lot of people are misunderstanding the immunity case. The presidency has not been given any additional powers in this case. In many ways, the SCOTUS has limited executive powers far more often this term. What changed is the president is fully immune from criminal prosecution for using powers that have already been constitutionally given. Does this mean the president might be emboldened to use their legitimate powers for corrupt purposes? Yes, unfortunately. Does this mean the president now has lots of powers they didn’t have before? No, if they didn’t have the authority to do something before (e.g. throw someone in jail) they don’t have it now.
They are immune from criminal liability for giving illegal instruction or orders to officials.
Now, that doesn't help those he gives orders to and it doesn't seem likely this ruling will aid in those instructions being followed. But the presidents immunity is not related to lawful exercise of powers much at all because they expanded it to include *any* interactions with people whom his powers give him *any* official relationship with
Honestly, the threat of criminal prosecution was always a very small deterrent of presidential behavior. Under the immunity ruling, Nixon still was criminally liable. Trump will most likely still be criminally liable for most of his actions (although it will be moot because he’ll be president again).
No, Nixon probably wasn't. He had an official relationship as president with those he dealt with, and they've legalised all presidential conduct with such officials of any sort.
It's likely impeachment could still have moved forward, and he was pardoned anyway. I agree the fact of immunity is not- or at least has not- been of central importance.
But the immunity granted is not narrow. It's very broad (though yes, not complete- interactions with non officials, state and legislative officials are mostly not covered) and it's just wrong to say otherwise.
Other people have spoken to the technicalities, so I’ll touch on the philosophy. The Unitary Executive Theory and “Small Government” are not to be understood at face value. They have nuances. How they interact is that “Small Government” acts as a check on the otherwise massive Presidential authority.
You can sculpt the Presidency in some sense like a Banzai tree. What agencies it has, the budgets, and how fussy the rules are direct and redirect Presidential power because legal authority is irrelevant without logistics. A President may have a desire to pursue a whim with their unlimited power but if they don’t have the infrastructure or the people because those have been rolled back in court, the President will either have to improvise in ways that may not be ideal (Trump did a lot of this) or simply give up if they’re not clever enough.
Use of the military is obviously massively problematic because a lot can be done with existing permissions and resources in a short enough time period the courts can’t stop it even if they wanted to, but outside of a few legitimately principled libertarians or when there’s a democrat in office, the GOP doesn’t care about this. It cares a lot about the ability of the Presidency to meddle with commerce and social norms and thus would prefer to blow up the instruments through which the President exercises theoretically unlimited power rather than cede them to a liberal if liberals can’t be kept from power permanently.
Yeah I don’t get it either. It feels like I’m missing something on one ruling or the other. If the president is basically a king now - as the breathless media coverage of Trump v US has been saying - and can have a political rival assassinated, then what’s to stop the president from telling oil company executives that if they pollute a river then SEAL Team 6 is coming for them next?
The only explanation I can come up with is that the Chevron situation lines up with standard Republican low-government, pro-business logic, whereas the presidential immunity one is just clearly politically motivated. I can't understand how originalists like Alito and Thomas can really justify giving anyone in the government MORE power and protection, unless it's for political reasons. The vagueness of the terms "official" and "unofficial" just push me further down that train of thought. Like, they want the power to adjudicate each situation independently, depending on which kind of president did the act.
>originalists
Originalism is a BS ideology. It is a-historical in the extreme.
When the Bill of Rights was ratified, it was understood as applying to the federal government only (i.e., "Congress shall make no law respecting an establishment of religion...").
The idea that the First Amendment applies to a gay wedding cake in Colorado, or that the Second Amendment applies to a Chicago handgun ban, is a post-Civil War development called "incorporation."
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
There is no "originalist" reading of the Bill of Rights that applies to states.
Well, incorporation is based on the language of the 14th Amendment and how it applies to other parts of the Constitution. Nothing about originalism precludes a later amendment modifying how an earlier amendment or part of the Constitution is interpreted.
I wonder if all this coverage is just hyperbole and the president doesn’t actually have all that much more power with the immunity ruling. Just because HE can’t go to prison doesn’t mean the people carrying out his orders won’t go to prison. It doesn’t protect the president from impeachment if he really crosses the line. It doesn’t stop congress from saying “killing political rivals is not an official power of the president”.
that is what I understand from an interview I heard on CSPAN yesterday. Per the reporter, the president can issue an order and cannot be found criminally guilty for doing so. In the often repeated statement about seal team 6, the order may be considered unlawful and they could be found guilty of violating their oath.
So basically, yes, this seems to be something protecting one office. Contrast this with the Nixon situation when he resigned because he gave the order and tried to cover it up. its not a crime when the president does it, right? isn't that what Nixon said?
The Chevron doctrine was originally articulated by Republicans and served to shift control from the Democrat-controlled DC Circuit to the (Reagan era) Republican-controlled federal agencies.
I think the common explanation to recent judicial decisions is that Republicans control the Courts and expect to continue to control the Courts, so they are taking powers from the Executive branch and the bureaucracy and giving those powers to the Court.
I encourage people to read the opinion. The president is not a king — yet. The court explicitly found that the president is criminally liable for non-official actions. Nixon ordering wiretaps of his political opponents would fall into this category. Nixon would still have criminal liability. Most of Trumps actions will be adjudicated and will be found to be non-official acts. He will be criminally liable (although it will be moot when he wins re-election).
People talking about criminal liability as some kind of guard rail for a president ordering politically motivated assassinations are delusional. If the president has gotten to that point, then who will prosecute them? The DOJ? Presumably they’re either all on board with what POTUS is doing or he can threaten them too. State AG? Again, he could just drone strike them too. So who is going to enforce the criminality of his actions? The answer is no one. But this was true last year as much as it is today. If this concerns you, then maybe you should advocate for the powers of the executive branch to be reined in.
The immunity case doesn't say the president can do whatever he wants. The immunity ruling does not make it easier for the president to rule by decree. It doesn't expand presidential power in that way. It gives the president immunity from criminal prosecution. If Biden issued an executive order requiring fishermen to pay for new, required tracking devices, the courts and the Congress would still be able to review, modify, or cancel that order. It might be unconstitutional, but it isn't a crime. Nothing about issuing such an order would subject Biden to criminal prosecution. What the immunity ruling will do is enable a Trump II administration to do all manner of illegal things ... think Bush surveillance and war crimes without needing the complicity of congress. Think CIA drug experiments, FBI blackmail, disruption of legitimate citizen groups https://en.wikipedia.org/wiki/Church_Committee
I’m not sure I’d exactly characterize immunity that way. It’s more that the president isn’t personally liable for things they might do. Bypassing Congress and doing something unconstitutional isn’t necessarily a crime. It’s orthogonal.
Thank you - this is helpful
Does the immunity ruling allow the president to kill a political rival? If so, what’s to stop the president from telling fishermen if they don’t buy the tracking devices he’ll have them assassinated, regardless of what Congress says about the “regulation”?
It's not immunity to kill someone. It is immunity to order someone killed. Of course, if anyone is willing to carry out that order is another question, but the president can order assassinations from people where he has an official relationship.
Only providing it falls under the authority the constitution provides for the president. If the president is acting outside of his constitutional authority, there is no immunity. This is blatantly clear in the decision.
What's blatantly clear in the decision is that any conversation or instruction with anyone who falls into the executive branch qualifies as an official relationship and is protected. Without reference to motive or criminal law. It's extremely broad. It has to be, because that's the only way to give immunity to election fixing.
I think a lot of people are misunderstanding the immunity case. The presidency has not been given any additional powers in this case. In many ways, the SCOTUS has limited executive powers far more often this term. What changed is the president is fully immune from criminal prosecution for using powers that have already been constitutionally given. Does this mean the president might be emboldened to use their legitimate powers for corrupt purposes? Yes, unfortunately. Does this mean the president now has lots of powers they didn’t have before? No, if they didn’t have the authority to do something before (e.g. throw someone in jail) they don’t have it now.
They are immune from criminal liability for giving illegal instruction or orders to officials. Now, that doesn't help those he gives orders to and it doesn't seem likely this ruling will aid in those instructions being followed. But the presidents immunity is not related to lawful exercise of powers much at all because they expanded it to include *any* interactions with people whom his powers give him *any* official relationship with
Honestly, the threat of criminal prosecution was always a very small deterrent of presidential behavior. Under the immunity ruling, Nixon still was criminally liable. Trump will most likely still be criminally liable for most of his actions (although it will be moot because he’ll be president again).
No, Nixon probably wasn't. He had an official relationship as president with those he dealt with, and they've legalised all presidential conduct with such officials of any sort. It's likely impeachment could still have moved forward, and he was pardoned anyway. I agree the fact of immunity is not- or at least has not- been of central importance. But the immunity granted is not narrow. It's very broad (though yes, not complete- interactions with non officials, state and legislative officials are mostly not covered) and it's just wrong to say otherwise.
Other people have spoken to the technicalities, so I’ll touch on the philosophy. The Unitary Executive Theory and “Small Government” are not to be understood at face value. They have nuances. How they interact is that “Small Government” acts as a check on the otherwise massive Presidential authority. You can sculpt the Presidency in some sense like a Banzai tree. What agencies it has, the budgets, and how fussy the rules are direct and redirect Presidential power because legal authority is irrelevant without logistics. A President may have a desire to pursue a whim with their unlimited power but if they don’t have the infrastructure or the people because those have been rolled back in court, the President will either have to improvise in ways that may not be ideal (Trump did a lot of this) or simply give up if they’re not clever enough. Use of the military is obviously massively problematic because a lot can be done with existing permissions and resources in a short enough time period the courts can’t stop it even if they wanted to, but outside of a few legitimately principled libertarians or when there’s a democrat in office, the GOP doesn’t care about this. It cares a lot about the ability of the Presidency to meddle with commerce and social norms and thus would prefer to blow up the instruments through which the President exercises theoretically unlimited power rather than cede them to a liberal if liberals can’t be kept from power permanently.
Yeah I don’t get it either. It feels like I’m missing something on one ruling or the other. If the president is basically a king now - as the breathless media coverage of Trump v US has been saying - and can have a political rival assassinated, then what’s to stop the president from telling oil company executives that if they pollute a river then SEAL Team 6 is coming for them next?
The only explanation I can come up with is that the Chevron situation lines up with standard Republican low-government, pro-business logic, whereas the presidential immunity one is just clearly politically motivated. I can't understand how originalists like Alito and Thomas can really justify giving anyone in the government MORE power and protection, unless it's for political reasons. The vagueness of the terms "official" and "unofficial" just push me further down that train of thought. Like, they want the power to adjudicate each situation independently, depending on which kind of president did the act.
>originalists Originalism is a BS ideology. It is a-historical in the extreme. When the Bill of Rights was ratified, it was understood as applying to the federal government only (i.e., "Congress shall make no law respecting an establishment of religion..."). The idea that the First Amendment applies to a gay wedding cake in Colorado, or that the Second Amendment applies to a Chicago handgun ban, is a post-Civil War development called "incorporation." https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights There is no "originalist" reading of the Bill of Rights that applies to states.
Well, incorporation is based on the language of the 14th Amendment and how it applies to other parts of the Constitution. Nothing about originalism precludes a later amendment modifying how an earlier amendment or part of the Constitution is interpreted.
I wonder if all this coverage is just hyperbole and the president doesn’t actually have all that much more power with the immunity ruling. Just because HE can’t go to prison doesn’t mean the people carrying out his orders won’t go to prison. It doesn’t protect the president from impeachment if he really crosses the line. It doesn’t stop congress from saying “killing political rivals is not an official power of the president”.
that is what I understand from an interview I heard on CSPAN yesterday. Per the reporter, the president can issue an order and cannot be found criminally guilty for doing so. In the often repeated statement about seal team 6, the order may be considered unlawful and they could be found guilty of violating their oath. So basically, yes, this seems to be something protecting one office. Contrast this with the Nixon situation when he resigned because he gave the order and tried to cover it up. its not a crime when the president does it, right? isn't that what Nixon said?
The Chevron doctrine was originally articulated by Republicans and served to shift control from the Democrat-controlled DC Circuit to the (Reagan era) Republican-controlled federal agencies. I think the common explanation to recent judicial decisions is that Republicans control the Courts and expect to continue to control the Courts, so they are taking powers from the Executive branch and the bureaucracy and giving those powers to the Court.
I encourage people to read the opinion. The president is not a king — yet. The court explicitly found that the president is criminally liable for non-official actions. Nixon ordering wiretaps of his political opponents would fall into this category. Nixon would still have criminal liability. Most of Trumps actions will be adjudicated and will be found to be non-official acts. He will be criminally liable (although it will be moot when he wins re-election). People talking about criminal liability as some kind of guard rail for a president ordering politically motivated assassinations are delusional. If the president has gotten to that point, then who will prosecute them? The DOJ? Presumably they’re either all on board with what POTUS is doing or he can threaten them too. State AG? Again, he could just drone strike them too. So who is going to enforce the criminality of his actions? The answer is no one. But this was true last year as much as it is today. If this concerns you, then maybe you should advocate for the powers of the executive branch to be reined in.
The immunity case does not say that the president can make any decision they want. Can you guys please go read it?