Stepping outside this morning feels like being mugged by the air around you. It’s not hot yet, a mere 73 degrees Fahrenheit, but it still feels as though the weather outside wants to kill you, making it difficult to breathe or, in my case, drink coffee. I’m often having my first or second cup of coffee when I take the dogs out each morning. I’ve tried getting the dogs to hold off but Hamilton just gets too anxious and, as we saw on Monday, is likely to have an accident if forced to wait too long. This morning, though, we went out and as I’m sipping at my coffee Ham looks back at me as if to say, “What is this fresh hell you’ve brought me to?” Neither of the dogs was anxious to stay. It looks as though it’s going to be an inside kind of day.
Storms are inching their way in our direction. As I’m typing, their bothering Springfield, IL, and St. Louis, MO. I don’t think they’ll actually cool things down any, though, and a new set will be here to keep things damp tomorrow. I still don’t think that the rain and threat of storms will keep the neighborhood quiet. If anything, it means having to do our July 4th “barbecue” indoors, and the kids don’t seem to care either way as long as they get to eat.
All of yesterday morning was spent writing as well as this morning. The issues facing us as a country are dire. If you didn’t get a chance to read Part One, yesterday, please take time to do so today. There’s a ton of misinformation about the ruling, which has people reacting in the wrong direction. Should we dissent? Yes, absolutely, but one needs to understand why. Yesterday we looked at the severe blunder that the majority made. Today, we’ll consider the practical fallout.
Meanwhile, if you have any friends/family in Jamaica, you might want to check on them Hurricane Beryl is headed in that direction and this powerful storm is taking no prisoners. People in the Southern Caribbean islands are largely homeless after the Cat5 storm passed over them yesterday. Jamaica isn’t exactly known for its storm-proof architecture. Don’t be happy. Worry.
A friend of Kat’s borrowed our lawn mower yesterday. Apparently, they have a difficult neighbor like ours who enjoys calling city code enforcement. It occurred to me this morning, though, that at no point while we were helping them load the mower into their car did we actually show them how to turn the damn thing on. Our mower is electric. There is a specific order of pushing the button and then holding down the handle or else it won’t start. Kat hasn’t said whether they’ve contacted her or not. I hope they figured it out.
I made a mistake last night and had pizza with the kids. I like pizza, but not only is it carb-heavy, it’s a good place to hide all kinds of sugars. Normally, when we order pizza I get an order of wings, no sauce, so that I’m not at risk. Trying to save $8, though, I didn’t order the wings yesterday. I ate the pizza. My sugar spiked hard. And then the pizza turned on me in the middle of the night. The mistake is mine and I have to own it. I’ll have to be extremely careful with what I eat the rest of the week.
There are a bunch of interesting headlines this morning. The death toll from a stampede at a Hindu religious congregation in northern India has risen to 121, proving that Christians aren’t the only ones who get stupid regarding religion. Farmers in southern Lebanon are wondering if white phosphorous, used by the Israeli military in cross-border clashes has contaminated their soil. New research shows that some ants perform limb amputations on injured comrades to improve their survival chances. The National Black Farmers Association called on Tractor Supply’s president and CEO Tuesday to step down after the rural retailer announced that it would drop most of its corporate diversity and climate advocacy efforts. See, not everything is about SCOTUS.
So, what are you going to do with your day?
Balancing Dissent With Reality
When the Supreme Court of the United States (SCOTUS) handed down its decision in Trump v. United States on Monday, the entire world gasped. Supporters of the Orange Felon, as we will refer to him in this opinion, were surprised that the decision had gone his way as much as it had. Everyone else on the planet, however, was concerned, not only Americans but both our allies and our enemies. This is not a decision that quietly fades into the shadows and is considered only by legal scholars. This decision has real-world consequences and the potential for those consequences has generated a great deal of fear. Let’s see if we can weed out facts from hyperbole.
First, much of the attention centers around the text of Associate Supreme Court Justice Sotomayor with Justices Kagan and Jackson joining. Let’s look at the first part of that dissent.
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
The most important part of the dissent, which can possibly be used by a subsequent court as a basis for overturning this decision, lies in the last sentence. The Constitution does not even contain any form of or relative to the word immunity. The Court’s majority did some incredible backflips and twisting of the law to create their opinion. Immunity is not Constitutional and that alone is the basis for dissent.
Why? Because the Supreme Court has one job: To decide what is or is not Constitutional. They are not there to make determinations based on what is politically expedient. They are not there to rule on what might be convenient to a contemporary setting. They are not there to fabricate laws that are not elsewhere mentioned. The entire purpose of the Supreme Court and its only authority is in interpreting the Constitution. In this particular case, they have failed in that duty. There is little reasonable question about that fact, only partisan opinion.
Unfortunately, that aspect of the dissent is not where Americans are focusing. Instead, they’re focusing on a later part of the dissent that carries what seems more of a sound bite intended to stir those watching the evening news. Justice Sotomayor writes:
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson,
J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the
majority’s message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Justice Sotomayor then concludes:
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important
question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
Justice Sotomayor was so concerned that her dissent, which is thoroughly researched and demonstratively dismantles the majority opinion, might be overlooked, she read the entire dissent from the bench, an act that rarely happens. Almost immediately, the press took hold of a particular question: Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
Could a Commander-in-Chief order SEAL Team 6 to assassinate a political rival and not face criminal prosecution? As Commander-in-Chief, the president holds unique powers over the military and, within the realms of military convention and rules of engagement, he can order the military to do a lot of things. However, just as the President does not have the power to unilaterally declare war (only Congress can do that), the President does not have the power to order the assassination of anyone.
Why? Because the military does not swear its oath to the President. Every military member, including Seal Team 6 and all other special military operatives, swears their allegiance to the Constitution of the United States. It is the Constitution, not Presidential orders, by which they are judged. Even if the President attempted to invoke such an order, all military officials, from the Pentagon down, would refuse to comply. The President could be angry, perhaps invoke the CIA to carry out the order (if it were on foreign soil), but Seal Team 6 cannot be coerced to assassinate a political rival.
That does not mean that the remaining dangers that Justice Sotomayor mentions are equally moot. Organize a military coup? Only in terms of organizing a military-styled coup utilizing private militias. As we’ve already discussed, the US military cannot and will not take illegal orders from a President. Even if the President were to nationalize the National Guard, as some have suggested he might, they can only be used for restoring and maintaining order within the confines of the Constitution. They cannot overturn an election or deny anyone the right to vote.
However, as we saw with the January 6 insurrection, a President might bring to bear the troublesome and undisciplined power of private militias. Militias exist in a legal gray area. Their establishment is set in the Second Amendment as a means of establishing a military-type force in the absence of a national military.
The Founders believed that “a well-regulated militia” was necessary to keep the federal government from becoming tyrannical. They had good reason to include this in the Constitution because they were all too familiar with how the British military was used against them in the Revolutionary War, and would soon be used again in the War of 1812. The United States was still new, there were still a number of questionable issues to work out. Few fully trusted the authority of a singular centralized government because they’d had such a horrible experience with King George III and the British monarchy.
However, over 200 years later, we’re well past the need for any kind of militia operating outside the established military. The National Guard is generally considered to be the “well-established militia” that the Constitution requires and other private, independently operated militias are looked upon as fringe groups that are more likely to cause trouble and break laws than they are to solve them. As the January 6 insurrection showed, a President can definitely wreak some havoc with a private militia, but any call to create a separate militia specifically to overthrow the federal government would definitely be in violation of the Constitution and, therefore, it would be the responsibility of US forces to put down such an effort, regardless of what the President might desire.
This is not to say that there are not some clear and present dangers to the Court’s decision. There are many. Heritage Foundation president Kevin Roberts thinks that the Court’s decision makes it easier for extreme right-wing conservatives to take over the country. That might be true if a President were to wholly embrace the concept of Revolution that the Heritage Foundation has been pushing since its inception. While the Orange Felon seems to have adopted the Project 2025 plan that the Heritage Foundation created, there are a number of aspects to the plan that are not achievable even with the President’s immunity from breaking the law.
The Heritage Foundation possesses no special power that you, I, or other progressive organizations don’t already have. They are a private entity that makes a lot of noise by saying absurd and ridiculous things. Form an organization that says equally absurd things about conservatives and they’ll get the same amount of righteous hand-wringing that Project 2025 is getting now. At the end of the day, organizations like this only have the power that YOU, the voter, give to them. If you don’t fund them, if you don’t vote for the candidates they support, then they become absolutely powerless and no amount of Presidential immunity can help them out.
What’s more concerning is the international response to the fact that the US President now how qualified immunity for “official acts.” The Court’s decision puts us in questionable company with other countries who hold their Presidents immune from prosecution. Among those: Russia, China, Chile, Kazakhstan, Lebanon, Rwanda, Sudan, Syria, Turkmenistan, Uruguay, and Uzbekistan, none of whom we should be any too anxious to emulate.
Rosalind Dixon, a professor of law at the University of New South Wales in Sydney, told the New York Times that the decision was “out of line with global norms.” She further said, “I think that what is occurring in the United States in terms of the court’s ruling and the presidential election should be of grave concern to all of America’s allies.”
“If the U.S. president is free from the restrictions of criminal law, if he has that level of criminal immunity, the other leaders of the allied nations cannot trust the U.S.,” said Keigo Komamura, a professor of law at Keio University in Tokyo. “We cannot maintain a stable national security relationship.”
Adam Shinar, a professor of law at Reichman University in Tel Aviv, said, “If this decision came down in the 1950s with Eisenhower as president, would we be as concerned or as outraged? Maybe not,” he said. “If we don’t trust our politicians to do good things anymore, then we need other things to step in, for example the criminal justice system. But if we have declining trust in our political institutions at the same time that there is growing immunity for our politicians, there’s a problem with that.”
Indeed, the question of whether any US President can be trusted is an issue as long as the Court’s decision on immunity is allowed to stand. How can we trust our own President when lying to Congress, an act for which previous Presidents have been impeached, is no longer a crime for a President who believes they are responding within the duties of their office? The ambiguity of the decision opens the doors to any number of potential crimes and misdemeanors for which, up until now, a President could be removed from office.
President Biden responded Monday night pretty much as one might expect. Speaking from the White House, he said:
You know, at the outset of our nation, it was the character of George Washington, our first president, that defined the presidency. He believed power was limited, not absolute, and that power would always reside with the people — always.
Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it.
I know I will respect the limits of the presidential power, as I have for three and a half years. But any president, including Donald Trump, will now be free to ignore the law.
I concur with Justice Sotomayor’s dissent today. She — here’s what she said. She said, “In every use of official power, the president is now a king above the law. With fear for our democracy, I dissent,” end of quote.
So should the American people dissent. I dissent.
The dissent of the American people should be loud. There should be posts on social media. There should be calls to members of Congress. In my opinion, there should be marches in city streets. We have to respond loudly and demonstrably to make sure that everyone in power knows that we do not take this decision lightly. SCOTUS broke the very law they are mandated to uphold. There is nothing in the Constitution that justifies the ridiculous decision granting any level of immunity to the President or anyone else.
Don’t give into the fear. Stand up, my friends. Yell. Scream, Stomp your feet. And by all means, VOTE! THIS is how we dissent!
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