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!
Morning Update: 07/16/24
Rain is going to dominate today’s weather and impact how I feel about everything, so let’s just accept that at the front and get it out of the way. Rain started around midnight, then got a little stormy, causing the dogs to decide they needed to rearrange how everyone was positioned on the bed. I think the only one who didn’t move all night was Frankie, the smashed-face wheezer kitty. Frank doesn’t move unless Frank wants to move. I aspire to be more like Frank.
We knew yesterday was going to be hot, so Tipper and I set off to get our walking in around 8:30. We were on our way back when a fire truck whizzed past us. We were then surprised to see it pull over to a house just up the street from where we were walking. An ambulance soon followed. Tipper, being the compassionate soul that she is, was immediately concerned for the older woman who lives there. We’ve seen her several times as we’ve passed. Tipper always smiles and says hi even though the woman never responds. As it turns out, it was one of the younger residents of the home, perhaps a son or nephew, who was having difficulty breathing. The older woman was sitting outside on a bench, out of the way of the paramedics, looking at her phone. Tipper said hi. The woman didn’t look up. Tipper switched her attention to the daycare across the street. “I hope they don’t let the kids play outside today. It’s really too hot for them to be out,” she said in the most compassionate tone. That’s our girl. Always caring for everyone else.
The mail always runs late on Mondays. I assume that’s because there’s backlog from not delivering on Sundays, which seems strange in a modern world. Each morning we get a report from USPS as to what to expect in the mail that day, with scanned images of the envelopes. This informed me that I had two letters coming from Social Security. What they missed was the flat, full-sized envelope that came with them.
The first envelope announced that the date of my monthly SS deposits had changed. No big deal. The second envelope confirmed that my attorney had been paid. I’m sure he appreciates that. The third, full-sized envelope, however, was trouble. The eight-page letter attempted to explain that while I’m definitely disabled according to their judgement, I’m currently unable to receive supplemental income for two reasons:
What has me puzzled, though, is whether it is worth contacting the lawyer again (or getting a different one) and appealing the decision. If Indiana doesn’t pay a supplement anyway, is it a waste of time to appeal? I have 50 days to decide, so if anyone has any Indiana-specific information to share, let me know.
There’s also the fact that SSA considers my living with Kat and the kids as a $341/month value. What happens if I move? Do I get that extra money? I do know that any form of financial help with housing lowers your payment regardless of the source. Why? Because the government wants old people to hurry up and die so they can stop paying us what we’re owed.
Of course, it may all be a moot point if Republicans win control of the federal government. While Project 2025 doesn’t outright destroy Social Security, it does raise the retirement age to 70 and opens the door for other cuts, such as letting the system go bankrupt, firing hundreds of employees, and other policy changes that could eliminate any benefit at all.
What I do know is that Republicans are prepared to fight for Project 2025. They’re already pushing to make several sections of the plan part of the official GOP platform this week. The plan’s sponsor, The Heritage Foundation, is one of the GOP Convention’s sponsors. Their pockets run deep and they’re prepared for a fight.
That means ordinary people like you and I, who don’t have deep pockets, have to make a lot of noise about the issue to make sure that voters know how dangerous it is. One of the problems, though, is that there is a lot of misinformation floating about and many of us, myself included, have unwittingly repeated it. We need to be more careful about these things. The whole plan is online, making it easy enough to verify information for ourselves. We can’t be lazy and assume that someone else has done the work.
Honestly, the plan doesn’t have to get specific. If it achieves it’s broader guidelines of concentrating power in the presidency (king making), slashing regulations (destroying oversight on any level), and taking a hardline religious agenda (especially involving medical care), then all manner of bad things could/will happen. Republican members of Congress will consider a fall victory as an edict to implement their interpretation of the plan. Never mind that the plan doesn’t get as detailed as has been inferred. Congressional Republicans have already shown a willingness to dangerous things such as discriminate against LGBTQIA+ people, eliminating DEI funding, and permit gun storage within the Capitol. Don’t think for a second that they’ll be more rational come January of next year.
Even if Republicans don’t win in November, we have to be ready for the possibility that they will try to take power by force. My friend Tony painted a frightening scenario:
i saw a bit that made the claim that the speaker will not sit the new house on Jan3, claiming election irregularities and, with the House still under con control, refuse to certify the election on Jan6. The election then goes to the state legislatures…. 26 of which are republican controlled. See where this is going. All the pieces are in place for this coup…
Could that happen? Yeah, it could. How likely it is to happen depends on how vocal we are before the election. We have to let Republicans know that we’re not going to tolerate any nonsense on their part. If they try to usurp power that is not theirs, they have to know that we are going to make every effort to stop them, regardless of what that may mean.
Again, I know there’s a push to tone down the political rhetoric after Saturday’s alleged assassination attempt, but we don’t have to infer violence to stand up to the clowns pushing fascism in our face. We just have to be louder than they are. We can do that.
If we don’t, then why the fuck am I suffering through chemo and all this SSI bullshit? If you’re going to just give up and let whatever happens, then I might as well go ahead and die because you’re allowing the Republicans to create a life in the US that isn’t worth living. I won’t live as a slave to stupidity.
Will you?
Share this:
Like this: