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Supreme Court rules ex-presidents have immunity for official acts

JumpCrisscross
85 replies
21h43m

Article III of the U.S. Constitution is incredibly brief [1].

I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.

Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.

(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)

[1] https://constitution.congress.gov/constitution/article-3/

bloopernova
39 replies
21h23m

Prediction: trump wins presidency. Midterms swing hard towards Dems. Next president's Congress reforms supreme court.

BadHumans
20 replies
21h7m

Prediction: Trump wins presidency and there are no more fair elections.

austin-cheney
19 replies
21h0m

If Trump wins he will be term limited by constitution irrespective of any election that comes after.

laidoffamazon
7 replies
20h57m

I think you're overestimating the impact that will have on whatever he would decide to do, given the events of today.

austin-cheney
6 replies
20h47m

The only official act that could, in theory, bypass this is a declaration of Martial Law that moves out the next inauguration. This has not been tested and likely wouldn’t work.

Just because a crazy mob attacked congress at the behest of Trump does not mean official institutions would do so even if so ordered.

austin-cheney
4 replies
17h25m

Yes, he has said all kinds of nonsense that had no means to ever materialize. For example I don’t see Mexico paying for a border wall.

laidoffamazon
2 replies
17h0m

“Attempted murder. Now honestly what is that? Can you win a Nobel Prize for attempted chemistry?”

It's fundamentally dishonest - and also somewhat delusional - to discount threats even if they didn't come to pass one time. People doubted Trump would try to hold onto office, until he did.

austin-cheney
1 replies
16h40m

I don’t doubt Trump will try to do the nonsense he says. I do doubt he has the means to persuade educated persons to do such things.

laidoffamazon
0 replies
16h13m

Again, this is less of a concern for him now that he will have sycophants in his orbit now that he's run out of people that will say no to him.

As an aside, I also have doubts that a chimpanzee would be able to successfully disable the safety an AK47. But it would be idiotic to leave that to chance and give one a loaded AK47 anyway.

BadHumans
0 replies
16h57m

By reclassifying all these individuals as Schedule F, he actually has the means to do this and it is a key part of Project 2025. During his first term, he enacted Schedule F and it was repealed by the Biden admin. Trump intends on reintroducing it in a second term. So he has the means to make this one re-materialize and this time he'll actually have the staff to replace people with.

dbspin
4 replies
20h56m

This seems remarkably naive. Who imposes such constitutional limits?

austin-cheney
3 replies
20h51m

They are imposed by the constitution and enforced by all bodies that descend from the constitution.

BadHumans
2 replies
20h47m

And if those bodies choose not to enforce it?

BadHumans
0 replies
20h28m

I don't think it's an unreasonable question to ask in this case as there is a very real chance it happens.

tootie
2 replies
20h40m

Read up on Project 2025 if you haven't already. The plan is to stack the executive with party loyalists. And he would have immunity. Rules and laws only exist in as much as people believe in them and enforce them. That could all just stop.

austin-cheney
1 replies
17h28m

Stop the insanity. He only has immunity for official acts as determined by lower courts. The Supreme Court decision is largely a punt back to lower courts but affirms that a president cannot be indicted for acts after leaving office if those acts were committed while in office and an official act as determined by a federal judge.

tootie
0 replies
15h54m

For one, he's possibly going to skate on trying to overturn the election due to this ruling. He's possibly going to skate on stealing classified documents just on Thomas' concordance. Trump has already shown he has no respect for the law. Trump voters don't seem to care at all either. He can and will do the absolute worst possible things he can get away with. This ruling may not be enough to destroy the Republic but it's giving ammunition to someone who is more than willing to do it. This is the closest we've come to destruction since 1860. I don't think freaking out about this is alarmist.

hughesjj
1 replies
20h54m

Trump and his ilk absolutely do not care about the constitution. There's a good chance democracy will be over in the US if he gets re-elected.

austin-cheney
0 replies
20h47m

Agreed, but every one else does.

sangnoir
0 replies
20h31m

Chief Justice Brett Kavanaugh writing for the 10/3 majority on June 30, 2028 "Well, ack-tually, the framers did not place term limits and congress has unduly restricted his constitutionally protected right to participate in our democracy. The candidate should be on the November ballot (or otherwise selectable by electoral college electors) in all 50 states"

lotsofpulp
14 replies
21h17m

How would a president reform the judicial branch? That power is in the legislature's hand.

mullingitover
10 replies
21h11m

After today? Easy: the entire court is loaded into a black helicopter in the middle of the night and never seen again. The White House spokesperson says, winking, “The White House officially has no comment.”

This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.

the_lonely_road
7 replies
20h49m

When did the discourse become so childish? Official acts is pretty clear and all of the fascination with the new standard will be derived from the gray area where reasonable adults disagree but the president can’t just order a bombing run on Toronto or murder political opponents now anymore then he could last week.

everforward
3 replies
20h26m

I read the ruling, and my takeaway is that either a) "official acts" is so overly broad that virtually any action could be done as an "official act", or b) "official acts" is very, very unclear.

E.g. from the court's opinion:

Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.

It's not a huge leap to infer that the President, as Commander in Chief, is engaging in official conduct any time they ask the army (or its many contractors) to do something.

The only thing the Constitution says is:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

There's nothing in there that says they can't be used domestically, or for what purposes the President can control them. There could be some quibbling about what "actual Service" means, but I suspect it becomes recursive to "whatever the president says actual Service is".

The specific reason that everyone is freaking out is this part of the opinion:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to ju- dicial examination on the mere allegation of improper purpose.

I.e. the president's motive is unquestionable, the only question is whether the action was taken via some power granted to the President. If it is, the President has immunity, and the president has _very_ broad powers.

WillPostForFood
2 replies
20h3m

Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.

This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of in- trusion on the authority and functions of the Executive Branch.

everforward
1 replies
19h3m

This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.

Sure, but take a look at what I posted, and then the proceeding sentences:

Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification pro- ceeding thus involve official conduct, and Trump is at least presump- tively immune from prosecution for such conduct.

I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.

Certifying the vote is an official responsibility of the VP, and Trump was talking about that responsibility. They are not allowed to consider motives, only whether Trump talking to Pence about certification is within his official powers.

I would be very, very surprised if a lower court was able to find that the conduct was not in an official function. There's not a lot of room here once you take out whether the motives align with a presidential function.

WillPostForFood
0 replies
16h29m

I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.

I don't understand, just read the next two paragraphs. They say he doesn't have blanket immunity, and his presumptive immunity can be pierced, and explicitly sent the case back to the lower court to gather facts and decide whether he has immunity in this instance. All three of those points are not blanket immunity.

karmajunkie
0 replies
20h39m

i think the thrust of the courts opinion today is that it’s not at all clear what’s official and what’s not and even if you can delineate what’s official, prosecutors are unable to use anything that isn’t public record and “unofficial” in their case, which eviscerates any real ability to enforce accountability.

hughesjj
0 replies
20h37m

In the dissent, they call out that what Nixon did wouldn't have been prosecutable under this interpretation.

If you can't enter private comms into evidence, all a president need do is privately communicate the disappearance of someone, domestic or foreign, and that evidence would be barred from any possible court cases.

Of course, you could still impeach, but no criminal prosecution could occur. If you're 35, at worst (legally) you'd lose out on your remaining term.

The implications of this ruling are absurd, and rife for abuse, should one decide to go rouge.

enragedcacti
0 replies
20h13m

Official acts is pretty clear

"Distinguishing the President’s official actions from his unofficial ones can be difficult."

-SCOTUS

sergiogjr
1 replies
20h50m

Oh, look, the moment decisions don't go the way I agree with, we throw democracy and institutions out of the window. Who's a "threat to democracy" now?

Good on you!

mullingitover
0 replies
20h43m

Not a window, a helicopter.

I’m not saying it should be done, but that’s the reductio ad absurdium this decision leaves us with. The aspiring despot’s toolbox has been converted into a full-blown machine shop.

SubiculumCode
1 replies
20h57m

What the other guy said, but also there's court packing.

lotsofpulp
0 replies
20h38m

They have to be confirmed by the legislature.

bloopernova
0 replies
21h6m

D'oh! I meant during the next president's term, a friendly Congress does it.

aklemm
2 replies
21h14m

You think Dems will win elections and get seated if Trump has another term?

docmars
1 replies
20h52m

I think with as many Dems that are losing faith in their party and seeing the bigger picture by moving to Trump, I doubt they would this time around.

hughesjj
0 replies
20h30m

I'm unaware of any disaffected democrats moving to Trump. At most, they're not voting or voting third party.

I'm sure that's there's a handful, but it's not what I'd consider even a miniscule population doing so.

claytongulick
14 replies
21h10m

The lifetime appointment of Supreme Court justices is done specifically so that they aren't financially influenced by politics and party.

I.e. their job doesn't depend on them ruling the "right" way.

There are pros and cons to different approaches. There are differences at the state level for judges, being appointed vs elected. Each has problems. In TX, for example, judges are heavily influenced by mob mentality - they're afraid to practice sentencing restraint because next election their rival will run ads saying they love murderers/rapists/whatever because they let someone off lightly in extraordinary circumstances.

woooooo
12 replies
21h4m

That all sounds great in theory but.. waves hands at Clarence Thomas

Ancapistani
10 replies
20h39m

Approximately half the country loves Thomas, and agrees with him. The fact that the perspective of each member of the Court is effectively frozen in time when they are appointed is intentional.

hughesjj
4 replies
20h23m

I don't know where you get 'half the country loves/agrees with him', other than the (incorrect) assumption that the population of the country is divided 50/50 along party lines (no Republican president has won the popular vote since 2004, and only once since 1992)

Clarence Thomas is notably the least loved justice in a historically hated court

https://thehill.com/homenews/4019788-poll-thomas-has-highest...

rayiner
2 replies
20h11m

What is the “popular vote?” You mean adding up the state-by-state votes which is a number nobody is trying to win?

And if we are talking about numbers that don’t matter, republicans won the Congressional popular vote four of the last seven times (by three million votes in 2022) and are on pace to in it again.

You can also look at the generic congressional ballot polling, where republicans regularly are ahead.

hughesjj
1 replies
17h48m

Yeah, that's fair. For most elections 'not voting' would be the plurality, especially in off year elections.

Well, kind of fair, with that caveat that this means even less Americans are likely to agree with Clarence or this ruling.

rayiner
0 replies
17h25m

Don’t make assumptions about what non-voters prefer. Lower propensity voters lean right these days: https://hbstrategies.us/trumps-non-voters/ (“Within this lower propensity segment, the respondents favor Trump over Biden by 12 percentage points, 50-38%. The unit would prefer a Republican Congress by a 50-41% margin, and Republicans would enjoy the five point identification advantage.”).

Ancapistani
0 replies
20h14m

That's why I said "approximately".

I'd say Thomas is to the right about what Ginsberg was to the left - the favorite of the core of their respective parties.

woooooo
3 replies
20h32m

He's taken a suspicious quantity of "gifts", you can look it up.

Ancapistani
2 replies
20h29m

My apologies, but I decline to argue this point. Whether Thomas (or any other Justice) is a good person or correct in their rulings isn't germane to the point I'm making.

Of all the currently-service Justices, the only one who has deviated from the perspective of the President who appointed them would probably be Roberts - and that statement is mostly based on a single ruling. It's not like he's well-loved by the left.

woooooo
1 replies
20h23m

I was responding to a comment saying that lifetime appointments prevent bribery. Justice Thomas is proving the theory wrong.

Why should I believe his decisions are about principle when money is changing hands?

Ancapistani
0 replies
20h15m

Ah, I agree with you there. I see no way lifetime appointments change the incentives around bribery.

That sounds like an impeachment issue to me.

brendoelfrendo
0 replies
20h27m

So, Thomas's perspective comes from an era when bribery and collusion with monied interests were accepted and normal?

The recent controversy around Thomas's behavior did not spring up because his opinions on governance date back to his appointment, but because--to the outside observer--it looks like he is perfectly comfortable with selling his opinion to the highest bidder. Lifetime appointments are supposed to keep judges aloof from external influences, but it seems like that logic failed in this case.

Buttons840
0 replies
20h38m

Indeed. It's already the case Clarence Thomas's way of life may depend on whether or not he rules the way certain friends and acquaintances want.

His job is safe, but much of his salary--no, not quite the right word--much of his overall reward is dependent on what powerful friends want him to do.

Ultimately, people don't care about keeping their job--who the hell likes their job?--people want to keep their compensation, and for the US Supreme Court, their compensation can easily be controlled by powerful third parties.

tacticalturtle
0 replies
20h4m

Federal justices still have lifetime appointments - and what the OP is describing wouldn’t change that.

tdb7893
9 replies
21h13m

As with all reforms in the US it's not gonna happen as the party that benefits will block it. Same with implementing ranked choice, outlawing gerrymandering, campaign finance reform, etc.

Systems always work to justify and perpetuate themselves. It's part of why our jobs can be such BS sometimes.

JumpCrisscross
8 replies
21h9m

it's not gonna happen as the party that benefits will block it

The right and left are both railing against our justice system. At different levels. For different reasons. But that’s political capital on the floor.

Same with implementing ranked choice

We have multiple jurisdictions with RCV [1]. Your purported impossibility has happened.

Systems always work to justify and perpetuate themselves

We have reformed our courts before in pursuit of seeking to perpetuate our American form of government. This is no different. Amending governments to make them more fit is not inherently in conflict with institutional prerogatives.

[1] https://en.m.wikipedia.org/wiki/Ranked-choice_voting_in_the_...

theptip
5 replies
21h4m

The right and left are both railing against our justice system.

True insofar as it goes… but this elides the detail that the right just won a generational battle for the Supreme Court. There is zero chance that any Republicans back reform here.

Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.

JumpCrisscross
3 replies
20h59m

this elides the detail that the right just won a generational battle for the Supreme Court

Sure. Until recently, they were losing. De-politicising the courts could be electorally advantageous for both sides.

the minimum viable reform to enact term limits after this lot dies off is dead on arrival

Because that’s obviously partisan. There are more Republican-appointed judges. Term limiting them obviously favours one side in a way drawing from appellate judges by lot does not. (The Fifth and Ninth are regarded as crazy by half the country.)

brendoelfrendo
1 replies
20h34m

Sure. Until recently, they were losing. De-politicising the courts could be electorally advantageous for both sides.

I think you overestimate how much the political apparatus cares about the long-term. It's hard not to agree that de-politicized courts are good, more or less, for everyone. But the right-wing won a generational battle for the Supreme Court. There is no incentive for any right-wing politician currently alive to propose that kind of change today; if anything, the political machine would call them out for proposing that their party loosen its grip on the reins.

We'll see how the right-wing feels after this next election. It's not a secret that whoever wins in 2024 will likely get to appoint several new justices, though the court as a whole will almost certainly remain right-leaning. If that control does start to erode, though, expect to hear much discussion about making the de-politicization of the courts a priority.

rayiner
0 replies
20h20m

Are we going to overturn all the lawless “emanations from penumbras” from the period when the left dominated the Supreme Court? If not, it would be political malpractice, and an abdication of their duty to their voters, for anyone on the right not to fight Supreme Court reform tooth and nail.

theptip
0 replies
3h31m

Until recently, they were losing

How recently are you talking here? It’s been a conservative majority for over 5 decades.

De-politicising the courts could be electorally advantageous for both sides.

Perhaps in the sense that being more consistently moderate would be advantageous for either party in seeking to win median voters, but I think this is not true in terms of the party base dynamics that actually drive most of policy and candidate selection. The Republican base is _thrilled_ with Trump and Mitchell’s maneuvering to secure a decades-long unshakable majority. Campaigning as a Republican on “I would like to reverse the biggest win in our lifetimes” would be political suicide, and your primary opponents would be the most well-funded in the country.

Because that’s obviously partisan

The last bill I saw had the change kick in _after_ the existing justices vacated their seats, so as to not be seen to attack the existing majority. Even then it was DoA with zero Republican support. And that should not surprise you.

I like your proposal, but I stand by my claim that it’s politically impossible as a bipartisan policy for this generation. The only way we get Supreme Court reform is if they overreach, moderates get fed up with strong conservative rulings, Dems win a landslide with a mandate, and pass a partisan reform bill.

Ancapistani
0 replies
20h42m

the right just won a generational battle for the Supreme Court

From someone most Democrats would consider "on the right" - it's more complicated than that, of course - you're right.

The right had _lost_ that battle for generations, though. I don't recall any serious efforts to reorganize the judiciary as a result of that.

The "Hawaii judge" has been a running meme on the right for _years_. Pretty much everything Trump tried to do that was even a little bit controversial was fought in the courts, and the left tended to practice "judge shopping" to place the cases in Hawaii's district. The Ninth Circuit has been known as the "Ninth Circus" for as long as I can recall.

Of course, the right also practices judge shopping. It's just part of how things are set up today. The difference in this discussion is that we're now talking about changing the system itself because the left feels like they lost.

Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.

I wouldn't be opposed to reform of some kind, but keeping the current nomination process and enacting term limits doesn't seem viable. The problem here is that Justices are nominated by the President. As long as that's the case, all term limits will do is make the judiciary less consistent. The biggest impact of changing the makeup of the Supreme Court more often would be to have precedent overturned more frequently.

It could be argued that the entire point of the way things are set up is so that the three branches won't be controlled by the same zeitgeist at the same time. Presidents get four to eight years. Congress can serve as long as they're re-elected, in two or six year terms. SCOTUS serves lifetime terms.

The fact that the branches are at odds isn't a bug; it's a feature.

tdb7893
0 replies
20h58m

The first point I feel like reinforces my point more than disproves it. Both sides clearly see the issues but won't actually reform while they benefit.

Ranked choice also has only been implemented in a few cases and generally by a ballot initiative (getting around the party structures somewhat).

To be fair systems do change but in general they use their power to resist it tooth and nail until change is inevitable and they collapse.

Der_Einzige
0 replies
20h39m

For RCV, it is small localities no one cares about, and yes, that does include Alaska.

rayiner
5 replies
21h5m

I’d be okay with that, but only if we have a review process where all Warren Court decisions are re-vetted by the newly constituted Supreme Court. You can’t spend half the 20th century having “judicial oligarchs” rewrite the constitution and then complain when a few court decisions go the other way.

But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.

selimthegrim
2 replies
20h43m

Why stop there? Why not go back to Lochner?

rayiner
0 replies
20h17m

That’s what I suggested:

But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.

Let’s see what “emanations from penumbras” we can find in the contract clause, second amendment, tenth amendment, etc. If only conservatives had the sense to use Roe as a template for how to judging should work.

HaZeust
0 replies
20h34m

Lochner made it impossible for the legal pragmatic of our country's ontology to recognize corporations and enterprises as autonomous entities that should have checks and balances for - and against - themselves AND other entities of the government, just as much as citizens do.

With how things shaped up, the innate de jure power struggle should have been "The People <> Legislative <> Judicial <> Executive <> Corporations"

We're still paying the price, as the Lochner era was incredibly myopic.

browserman
1 replies
20h56m

How do you feel about Brown v Board? Heart of Atlanta? All the other civil rights cases? Disgusting weasel.

dang
0 replies
30m

You can't attack another user like that, regardless of how right you are or feel you are, or how wrong they are or you feel they are.

Since you've been doing it repeatedly, as well as breaking the site guidelines many other threads, as well as using HN primarily for political battle, I've banned the account.

For clarity: no, that's not because of your views—it's because you're expressing your views in ways that are egregiously breaking HN's rules. Many other users who share your views have no problem expressing them within the site guidelines, and that's completely fine.

If you don't want to be banned, you're welcome to email hn@ycombinator.com and give us reason to believe that you'll follow the rules in the future. They're here: https://news.ycombinator.com/newsguidelines.html.

rayiner
4 replies
20h23m

Why do you keep using the word “corruption?” This is an incredibly milquetoast opinion that says presidents retain immunity for some official acts while in office. Because that’s obviously true. When Trump wins again, he can’t prosecute Biden for deaths caused by Biden’s border policies. Because obviously. It’s shameful that it wasn’t 9-0.

electrondood
1 replies
20h11m

In software development, one of the biggest smells is being asked to implement a solution to something that isn't a problem that anyone actually has.

In 250 years, for 44 presidents, not one of them has needed immunity from criminal prosecution.

All this does is shield the man who attempted to use violence and a conspiracy to commit election fraud with a fake slate of electors to reverse the result of a legitimate decision.

To call this milquetoast is to continue the gaslighting. This decision has permanently altered the American Experiment.

rayiner
0 replies
19h19m

You think Bush couldn't have been prosecuted for something in connection with the Iraq War? You think Obama couldn't have been prosecuted for something in connection with drone strikes?

JumpCrisscross
1 replies
20h7m

Why do you keep using the word “corruption?”

I used it once. Because that’s why ancient democracies used selection by lot. My criticism isn’t of this ruling per se, but of the institution, which has swung from a stabilising branch of government to a constant source of chaos.

rayiner
0 replies
19h21m

which has swung from a stabilising branch of government to a constant source of chaos.

What are you talking about? The Supreme Court gutted the constitution in the mid-20th century, and anti-democratically reshaped society down to its foundations.

The supposed "chaos" comes entirely from liberals freaking out at the smallest retrenchment of their destabilizing prior precedents.

mullingitover
2 replies
21h16m

This, plus the opinions should not be signed, and dissenting opinions should not be published at all.

The current system seems like it’s designed to aggravate politics in the very branch that’s intended to be beyond them.

claytongulick
1 replies
21h8m

Dissenting opinions are a crucial part of the process. They're frequently cited by lower courts and in future supreme court cases.

The supremes don't always get it right. Dissenting opinions are the mechanism for expressing that reality.

mullingitover
0 replies
18h43m

We let them be part of the process by tradition. They’re not constitutional, and they’re irrelevant to the outcome. They’re essentially a participation trophy and they politicize the opinions by offering a glimpse of what could’ve been if the court was packed differently.

tacticalturtle
1 replies
20h59m

This is the best reform idea I’ve heard. Has it been mentioned elsewhere?

There is a reference in the Constitution in the impeachment clause to the “Chief Justice” - which maybe implies justices with some sort of tenure, but I suppose that could be filled randomly as well, much like a jury foreman.

JumpCrisscross
0 replies
20h6m

Has it been mentioned elsewhere?

Not that I can find. (It’s already been flagged off the thread, granted.)

a reference in the Constitution in the impeachment clause to the “Chief Justice”

Ministerial. The most-senior jurist on the appellate court.

garaetjjte
1 replies
20h39m

Who decides what cases are heard in this scheme?

JumpCrisscross
0 replies
20h10m

Who decides what cases are heard in this scheme?

Good question. Perhaps a separate bench chosen once per session? Have the other circuits vote on it?

godelski
0 replies
20h31m

Article III of the U.S. Constitution is incredibly brief [1].

So is the constitution. But I think what also matters a lot is things like the Federalist papers. Where these aren't explicit laws but are the motivations and philosophy behind them. Ruling by the letter of the law will always be tyrannical because no thing is perfect.

Federalist 78[0]

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

It's also worth mentioning here that this same document specifies that the judicial branch and executive branch are to remain distinct. That all the judicial branch can do is issue judgement, but are not capable of executing such judgement. I mention this because there is another question that arises if the one in charge of the executive branch is judged to have committed a crime by the judicial branch. But of course, this is back to the point that there are no global optima. There is no free lunch.

[0] https://avalon.law.yale.edu/18th_century/fed78.asp

beaeglebeachedd
0 replies
20h49m

This is sortition. I would apply it liberally and use it for most legislative offices. Elections and appointments tend to bring out the worst of society -- the kind who actually want power over peoples' lives.

sterlind
54 replies
21h40m

> 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.

Sotomayor's scathing dissent sums up my concerns on the matter. Even for Barrett, a conservative, the majority opinion was a bridge too far: even bribery now enjoys absolute immunity.

joshuaheard
33 replies
21h34m

Assassinating a political rival is not an official act.

tines
12 replies
21h32m

Says who? You can't ask me why I did it, according to the ruling. I could have had a good reason. And you can't use my private records, nor those of my assistants, either.

joshuaheard
5 replies
21h29m

Where in the Enumerated Powers of the Constitution does it give the the President the power to kill political opponents?

moreofthis
1 replies
21h14m

This is a silly response.

The ruling has specifically left the definition of "official acts" for the lower courts to decide on a case-by-case basis; they have not limited official acts to Enumerated Powers of the Constitution. The president likely has modern "official acts" that are not in in the constitution (such as the ability to issue executive orders) so it is not as simple as pointing to it. As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size.

HaZeust
0 replies
19h21m

"As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size."

Easily the best way I've seen the impact of this ruling, articulated.

tines
0 replies
21h28m

The constitution gives me the power to kill people for good reasons (I am the commander in chief of the military, after all), and I assure you, I have good reasons. Which you can't ask about.

And don't tell me I need Congress to authorize my killing people. I haven't needed that since Vietnam or something.

threeseed
0 replies
21h8m

Constitution also doesn't give the President the power to go to the bathroom.

It codifies rules for certain aspects of their role. Not everything.

enraged_camel
0 replies
20h44m

You need to think about this a bit more carefully. Today's ruling states that the president has immunity for all official acts. Official acts can be literally anything the president does _in his capacity as president_.

thallium205
4 replies
21h23m

Says who? A court.

tines
3 replies
21h21m

Assassinating people is my job, I'm the commander in chief of the military. I just happened to do my job on someone who also happened to be my political opponent. How is that not an official act for which I am immune? The court cannot inquire about my motives.

avmich
2 replies
21h16m

You don't seem to understand how the judicial system in USA works. The ultimate decision capacity is with the people. The way it's realized may differ, and the time may be long to pursue the decision, but not even SC has the last word, only the people. The court cannot inquire about your motives is only until people are ok with that; if they are not, the reason will be found - or not - and pursued - no options here - to insist.

Spooky23
1 replies
21h2m

The problem is that 50% of the people are in a camp that advocates for the overthrow of the US government, while consolidating power and ensuring that it is as difficult as possible for people who oppose them to vote.

The Senate allowed legislation that made public lynching a crime to fester in committee without a vote for years. The Supreme Court’s abandonment of any reasonable check on executive power or governmental integrity is absurd. You literally have a justice on the payroll of a billionaire who has paid him millions of dollars who helped redefine bribery to make it a crime impossible to prosecute:

avmich
0 replies
20h42m

That's unfortunately the practical problem and the reality of the situation. In other words, I agree.

unethical_ban
0 replies
21h17m

ATTN: The above comment is satirical and making a point. The point is that the majority says intent of an "official act" cannot be questioned.

So kind of how they said bribery is okay as long as it's not explicitly asked for and given as a "gift" after the fact, the majority holds that presidents can kill their political opponents as long as they "say" it was for national security.

stefan_
6 replies
21h28m

I guess we can call it bold when you claim to have a better understanding of the decision than a dissenting justice.

1123581321
4 replies
21h24m

Claiming to have the same understanding as the majority of justices seems safe, though, if that's how you decide what opinions to hold.

brayhite
3 replies
21h18m

Did the majority opinions refute the dissent?

All I saw was that they were dismissed as “extreme hypotheticals”. All of that despite the publication of Project 2025 openly calling for the next conservative president to bend and break bureaucracy to carry out their desires.

We’re firmly in the Fuck Around stage of what exactly this ruling will and will not allow, and one way or another, we’re going to Find Out within the next 3-6 months. I know which candidate I hope to Find Out from.

1123581321
2 replies
21h1m

In the majority opinion, this part would disagree with Sotomayor's example: "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

The language isn't as electrifying as Sotomayor's example, but you can still imagine unofficial acts that would not warrant immunity.

stefan_
1 replies
20h42m

High level of snark given that this is the most definitive part of the ~~actual decision~~ syllabus you could find to possibly counter what Sotomayor wrote. Guess you didn't read it first.

(Advanced trick: you are reading the syllabus. The actual decision is below.)

1123581321
0 replies
20h36m

I read it this morning. Which part would you have quoted? I picked that part because it seemed like the clearest summary.

amadeuspagel
0 replies
21h23m

I guess we can call it bold when you claim to have a better understanding of the decision than the justices who wrote it.

camgunz
5 replies
21h28m

Imagine Biden assassinating Trump under the pretense that Trump likely had other classified documents hidden away, or was too mentally unstable to be trusted with presidential secrets. This is the kind of action this ruling sanctions, entirely.

Red_Leaves_Flyy
2 replies
21h16m

Which is why Biden must do this and immediately resign the presidency. Though he also needs to fix the Supreme Court so dubious territory even with the recusal.

adventured
1 replies
21h9m

Which is why Biden must do this and immediately resign the presidency.

Calling for the murder of specific people is very much against the rules of this site.

Red_Leaves_Flyy
0 replies
20h11m

Intentionally misinterpreting comments is very much against the rules of this site.

You’re supposed to be charitable in your interpretations.

I’m saying that Biden must act with his newfound unconstitutional powers freshly minted by the unqualified tyrannical theist fascists on the Supreme Court. How he does that is up to Biden, sorry I wasn’t more explicit - I ignorantly assumed the nuance to be as plain as the fascist intentions of trump and the company he keeps.

adventured
1 replies
21h12m

This is the kind of action this ruling sanctions, entirely.

Given the extraordinary claim you're making, I'm doubtful that you have the qualifications to support the absolute statement being made pretending to be fact. This is especially true given how little this new ruling has been covered by the very people that are charged with deciding how it will work in practice.

You're not issuing an opinion in what you said. You're claiming it's a matter of fact. Constitutional and executive branch experts with decades of experience will be debating what this means for a very long time to come, with far less certainty than what your comment contains.

camgunz
0 replies
20h29m

Presidents order the deaths of people in the interest of national security all the time. It's entirely within their official duties.

This is a legal thread on a tech forum so I find your credentialism thoroughly disingenuous. If you want to actually discuss I'm game, but your inane appeal to non-authority is tedious.

spamizbad
0 replies
21h18m

What if the president deems it necessary out of national security interests?

neogodless
0 replies
21h27m

As an official act, we determined that my political rival was an enemy of the state and known terrorist, who was threatening our democracy. As such, it was my duty to order her/his assassination, for the safety of our great nation.

lunarboy
0 replies
21h28m

Yeah but pardoning the killer is. Why the killer chose to do it, who knows? Frankly, even if the phone call is leaked, motive doesn't matter apparently.

hn_throwaway_99
0 replies
20h45m

There have been instances in the past where the US military has assassinated US citizens that they deemed terrorists. Search for "Anwar al-Awlaki".

Under this ruling, it would be entirely possible for Biden to declare Trump a direct danger to the republic and, as commander in chief, order him to be assassinated. Of course the "officialness" of this would be debated in the courts, but the reason so many find this ruling unconscionable is that it does basically say "the President is above the law - he just needs to do things under the guise of official acts".

davidw
0 replies
21h19m

You just have to drum up some flimsy excuse that sounds official, I guess.

Spooky23
0 replies
21h6m

Here is Justice Roberts’s definition of an official act. Since the courts are making it a new executive power, it’s in the eye of the wielder. Long live the king.

In a unanimous decision written by Chief Justice John Roberts, the Court held that, under Section 201(a)(3):

[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”
Miner49er
0 replies
21h22m

It very much is if it's done by commanding the military to do it. Maybe not so much if a President did it themselves.

friend_and_foe
6 replies
21h34m

This is factually incorrect, the president can be prosecuted for anything, he doesn't even have to commit a crime, but there's a special process for that called impeachment. This isn't new stuff and it has been understood to work this way for a couple hundred or so years, until very recently.

tines
0 replies
21h29m

What about after he has left office?

tdb7893
0 replies
21h16m

Even the majority opinion doesn't agree with you. Literally the only people I've heard make this argument are Trump's lawyers in this case and in fact during the impeachment proceedings they said the exact opposite. Impeachment is a separate process and the president doesn't need to be impeached to be charged with a crime.

jcranmer
0 replies
21h30m

The impeachment clause specifically lays out that impeachment doesn't inhibit criminal prosecution for the same acts. Hell, Trump's impeachment defense was essentially that he should be criminally prosecuted instead of impeachment.

gazook89
0 replies
21h31m

Impeachment is a political process to remove someone from office, it doesn’t send you to prison.

Natsu
4 replies
20h9m

That article is bad. It ignores the ruling specifically pointing out that 18 USC 201 among other laws does cover 'gratuities' as well as bribes, and it misleadingly claims that "[t]he Supreme Court on Wednesday struck down part of a federal anticorruption law" when referring to 18 USC 666 (Federal Program Bribery, AKA "The Beast") which is just not true. You can see it's not true in the holding:

Held: Section 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.

Nowhere in there do they declare any part of 18 USC 666 unconstutional, which is what one usually takes "struck down" to mean.

The LA Times is at least correct in stating that the ruling clarifies bribes come before the act and gratuities come after, with different legal effect, but they seem to leave out any discussion of this bit inexplicably:

For example, Congress has established comprehensive prohibitions on both bribes and gratuities to federal officials. If a federal official accepts a bribe for an official act, federal bribery law provides for a 15-year maximum prison sentence. See 18 U. S. C. §201(b). By contrast, if a federal official accepts a prohibited gratuity, federal gratuities law sets a 2-year maximum prison sentence. See §201(c).

Point being, no, gratuities aren't really legal either, they're just punished under different statutes. David G. Savage could've just used this line from the ruling as a much more accurate summary:

Although a gratuity or reward offered and accepted by a state or local official after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.

And why did they do this? Because technically giving an apple to your teacher would be Federal Program Bribery otherwise:

The Government’s interpretation seems all the more unbelievable because §666 applies to the gift-givers as well as the state and local officials accepting the gifts. Specifically, §666(a)(2) makes it a crime punishable by 10 years’ imprisonment for someone to “corruptly” offer or give “anything of value” to state and local officials “with intent to influence or reward.” So under the Government’s approach, families, students, constituents, and other members of the public would be forced to guess whether they could even offer (much less actually give) thank-you gift cards, steak dinners, or Fever tickets to their garbage collectors, professors, or school board members, for example.

But the "bribery is legal now" take you seemingly got from here is incorrect under any interpretation of the word "bribery." Using SCOTUS' version of the word, bribes are still punished by 18 USC 666, and gratuities are punished by 18 USC 201 (as well as other laws for both categories).

But don't take my word for it, you can read the ruling directly: https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf

waciki
3 replies
19h46m

So under the Government’s approach, members of the public would be forced to guess whether they could even offer thank-you gift cards, their garbage collectors, professors, or school board members, for example.

That seems bizarre to me, an apple or a low value meal ticket are not "something of value" unless you read things literally for no reason.

"of value": valuable, having a great value

LodeOfCode
1 replies
19h2m

The law actually says "anything of value of $5,000 or more". The majority opinion is just arguing in bad faith there

Natsu
0 replies
18h28m

They seem to be talking about 18 USC (a)(2) in that quote you're reacting to, which reads:

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;

https://www.law.cornell.edu/uscode/text/18/666

The problem here is that the $5,000 here is NOT the value of the bribe!

It's the value of the funds received from a federal program you're bribing someone that's a part of. So if the garbage collectors, schools, etc. receive more than $5k in funds subject to this statute, it doesn't matter what the bribe is.

That's why they call it "Theft or bribery concerning programs receiving Federal funds" after all. You can read the holding in Sabri to see them spell that out a bit more clearly than the statute does:

For criminal liability to lie, the statute requires that "the organization, government, or agency receiv[e], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." § 666(b). In 2001, the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million of federal money.

[...]

The Court does a not-wholly-unconvincing job of tying the broad scope of § 666(a)(2) to a federal interest in federal funds and programs. See ante, at 605-606. But simply noting that "[m]oney is fungible," ante, at 606, for instance, does not explain how there could be any federal interest in "prosecut[ing] a bribe paid to a city's meat inspector in connection with a substantial transaction just because the city's parks department had received a federal grant of $10,000," United States v. Santopietro, 166 F. 3d 88, 93 (CA2 1999).

https://www.law.cornell.edu/supremecourt/text/541/600

Incidentally, those examples they used seem to have come from hypothetical scenarios raised during oral argument. You can read a bit more here in the transcript of the oral arguments:

https://www.supremecourt.gov/oral_arguments/argument_transcr...

Natsu
0 replies
19h1m

A lot of laws cover more conduct than people think they do, but I think that part of the point here is that it works on giver and receiver.

thallium205
3 replies
21h24m

Judges and prosecutors also enjoy absolute immunity in their official capacities.

dgfitz
1 replies
21h23m

Fact.

avmich
0 replies
21h20m

False.

Judge ordering something can be brought to court to review if the order was lawful. Judge making judicial decision - that is, not ordering something to support that decision, but actually deciding - is immune, but that is decision of the limited scope - it's not an action. Decision itself can be reviewed, so there's principally less scope for possible intentional or unintentional errors.

adventured
0 replies
21h20m

There are vast problems with federal agency immunity protections as well. Whether as a federal employee or a civilian, trying to sue a federal agency for something it has done wrong can be nearly impossible.

Spooky23
1 replies
21h10m

This isn’t conservatism. It’s despotism.

We’re probably a decade away from a coup.

failuser
0 replies
20h5m

Decade? You are optimistic.

demosthanos
0 replies
21h9m

Killing an American citizen without due process should be outside the scope of official acts regardless of whether the President has immunity for said acts. Obama proved that it's not [0], which is a major problem that should have been addressed a long time before this ruling.

On the whole the principle of this ruling is sound:

The President shouldn't be in a position where he has to wonder before each choice if he'll later be prosecuted for it or not. The boundaries of official acts should be spelled out clearly in the law, and when acting within those boundaries the President should be confident that he's authorized to make the tough calls.

The ambiguities that this ruling brings to light were already there, this ruling only exposes them. President Obama could theoretically have been personally prosecuted for killing al-Awlaki and now he can't.

Now it's time for us to explicitly identify in the laws what the President can and cannot do. That's a change that's long overdue.

[0] https://en.wikipedia.org/wiki/Anwar_al-Awlaki

locococo
14 replies
21h55m

I think a big problem here is that all existing laws and the system concerning presidents rests on one very important assumption. That the commander in chief is a decent, rational human being that carefully considers his actions and holds the interest of the United States and the Citizens in high regards.

It all falls apart and gets too complicated to regulate when the assumption is that you can't trust the person in office.

tines
12 replies
21h42m

I don't think this is true. The constitution was designed with the idea of preventing a king from coming to power. The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

notTooFarGone
3 replies
21h38m

Everything a king does is an official act by definition.

What do you think is something a president does? Is starting a war an official act? Or appointing your own supreme court? Persecuting insurrectionists?

Who will judge this once the ball gets going? The judges now appointed by you?

friend_and_foe
1 replies
21h31m

Congress, via impeachment.

Look, the president can't do something like start a war without permission from congress. Congress basically delegated that authority to the president. If the president then uses it irresponsibly (as has happened numerous times since congress made this decision) then that's the fault of congress. They can very easily pass legislation requiring a declaration of war and take that power back if they want to.

anderber
0 replies
21h7m

But each party will protect their president, and you need a two-thirds to impeach. I just don't see the modern senate ever impeaching a President. We've seen today how far they will go to ignore reality and lie to make sure their leader doesn't suffer any consequences.

chrsig
0 replies
21h31m

Who will judge this once the ball gets going? The judges now appointed by you?

This is what lifetime appointments were intended to address. There's no incentive to rule in the president's favor. Of course, now there's the prospect of gratuity for services rendered.

neogodless
2 replies
21h38m

I kind of (OK totally) need a history lesson / refresher. How was the Judicial Branch supposed to function?

Because I don't believe it was supposed to be able to basically override the Legislative Branch. Just like the Executive Branch wasn't supposed to have unchecked power as long as it's "Official" business.

How were the three Branches intended to keep each of the other in check?

mschuster91
1 replies
21h19m

By everyone doing their job and respecting the authority that the other branches had. Something like an executive outright ignoring court orders (e.g. Joe Arpaio [1]) is as unexpected as the legislative refusing to pass laws because it's gridlocked due to malfeasance on the side of the Republicans. There's a reason why the Supreme Court ended up playing such an important rule: Congress hasn't done shit in decades now, and the same goes for the States, the last Constitutional Amendment was passed in 1992 and the one before that in 1971. Something like the right to abortion should have been enshrined into a constitutional amendment loooong ago. EPA rules should have been set by law, not by executive order. The list goes on and on and on.

And the last failsafe the founders intended was the populace. Officials found breaking the law or be otherwise unfit of office were supposed to be at the very least not reelected by the populace - and yet, Arpaio was reelected for 24 years in a row, Biden was elected (he was better than Trump, but that doesn't mean someone of his age should have been president!), and Trump will most likely be reelected. The voters share a huge part of the blame.

[1] https://www.theguardian.com/us-news/2017/jul/31/joe-arpaio-c...

sokoloff
0 replies
21h5m

Something like the right to abortion should have been enshrined into a constitutional amendment loooong ago.

Indeed, and practically, probably initiated as part of the 95th or 96th Congress (under Carter), when the Democrats had substantial majorities in both houses and obviously the presidency.

My feeling is that this was not done because doing it removes the threat/opportunity of it getting rolled back, and removing that threat/opportunity lessens the fundraising ability of both parties.

AnimalMuppet
1 replies
21h15m

The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

No. Separation of powers comes down to "never give anybody power that someone else cannot block". That "someone else" needs to be independent, too - that's the "separation" part.

tines
0 replies
20h57m

Separation of powers comes down to "never give anybody power that someone else cannot block". That "someone else" needs to be independent, too - that's the "separation" part.

That's what I said, in different words.

salawat
0 replies
15h16m

Actually more along the lines of:

An individual can be bad, but where they are, a group can generally be relied upon to rein them in. Groups can also be bad, but generally when individuals are removed from a group context, better sense prevails.

Juries balance the judge, just as the judge balances out the jury.

The Senate balances the House, just as the House balances the Senate.

The President only found balance in the checks of the other two branches, and the good sense and consciences of the electors in the Electoral College, who were empowered to be able to ignore the popular vote if upon vote casting time, their good sense deemed otherwise once they were removed from the influence of group dynamics.

mschuster91
0 replies
21h22m

The constitution was designed with the idea of preventing a king from coming to power.

And if the Republicans get their way with Project 2025, by all interpretations they'll create a King.

The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

It assumes at its core that even if individuals may pursue bad goals, that the larger society/organizations like parties or officials like the Electoral College will curtail their attempts.

Unfortunately, neither of these assumptions held true when faced with a demagogue like Trump.

ignoramous
0 replies
21h37m

individual is bad, but groups are less bad

Bad groups tend to scape goat individuals until their next rodeo.

oceanplexian
0 replies
21h0m

I think a big problem here is that all existing laws and the system concerning presidents rests on one very important assumption. That the commander in chief is a decent, rational human being that carefully considers his actions and holds the interest of the United States and the Citizens in high regards.

No, that's not what the existing laws or system rests on.

The system rests on the fact that the Commander in Chief is an elected representative, and therefore their actions represent the will of the people. Washington Post might not think he is rational. A random Judge might not think he is rational. You might not personally think he is rational. What is "rational" is determined at the ballot box, or via the impeachment process in the legislature.

alberth
7 replies
18h54m

Unitary Executive Theory

The movie “Vice” explains well what this is about.

It’s was originally imploded by President George W Bush.

https://youtu.be/_UPvTdDB-h0

—-

SCOTUS essentially ruled in favor of this theory.

api
4 replies
18h41m

I always wonder about these kinds of power play doctrines: do they really think only people they like will ever be in power?

Same question applies to either party when they push stuff like this.

wumeow
0 replies
18h33m

They’re betting that the Democrats won’t have the guts to test the limits of this ruling.

jaredhallen
0 replies
17h59m

Totally agree. Look at the Supreme Court nominations under Trump. He hit the jackpot. But then there was a bunch of talk by the other side of adding justices. Do we really want to open that can of worms? That's a blade that will cut both ways once the precedent is set.

ClarityJones
0 replies
4h27m

The opinion is not nearly as broad as certain sources say it is. What it actually says is that immunity as to "core" powers is absolute, but it doesn't define the scope of those powers. It says other official powers have some immunity, but are not immune basically if allowing the prosecution wouldn't impair future presidents. Those are both exceptions that are larger than the rule.

Some are saying it is broader than it is because they want charges to be dismissed. Others are saying it's broader because they want a more powerful executive. Others are saying it try to make the court look bad, or to get votes. Some are saying it because they're mistaken / confused. On 4 out of 5 counts, the court remanded for further proceedings without deciding whether Trump has immunity. All of these voices could have easily come out with a different take, claiming victory and saying he will likely be convicted on most counts.

3836293648
0 replies
18h37m

They control SCOTUS, they can just undo it when the president does something they don't like.

tdeck
0 replies
18h44m

Unitary executive theory: Something conservatives on the Supreme Court came up with to defend any government action they like.

Major questions doctrine: Something conservatives on the Superme Court came up with to defeat any government action they don't like.

rayiner
0 replies
18h22m

This has nothing to do with unitary executive. Immunity of the head of state derives from the concept of sovereign immunity, the government’s immunity from suit. In the U.S., it derives from the Crown’s immunity against suit.

The notion that former heads of state have some sort of immunity for official acts is also common in developed countries: https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpe...

“Functional immunity applies to both sitting and former heads of state; however, this immunity is available to such individuals solely with respect to acts performed in their official capacity (Fox 667).”

This notion is the core of the supreme court’s holding in this case.

paulvnickerson
5 replies
21h24m

So many people reacting irrationally and misunderstanding what the ruling says. The first few pages are very readable, and I encourage all to read [1]

- Actions within the President's conclusive and preclusive constitutional authority: Absolute immunity, in accordance with constitutional separation of powers.

- Other actions done within an official capacity: Presumptive (though not full) immunity, to "to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."

- Unofficial actions: No immunity.

Who is the arbiter of whether an action is official or unofficial? The courts, according to the ruling: "The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial." In this case, a very liberal judge appointed by Obama.

One may disagree with the ruling, but it does not, as Sotomayor (who recently has been making more public and political appearances than is appropriate for someone of her position [2]) states, give the president the ability to drone strike his political opponent.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-sup...

munchler
3 replies
21h18m

The president already has official authority to drone strike terrorists. All he has to do now is make an official determination that his political opponents are terrorists.

demosthanos
2 replies
20h58m

Yeah, we should definitely fix the fact that the President can order hits on US citizens. That's a pretty obvious problem regardless of whether they can technically be prosecuted for it, and doesn't really change the merits of the question at hand.

All this case says is we shouldn't leave a President's legal culpability for any given action up to prosecutorial discretion. If they're using their official powers they're not culpable, if they're acting outside the bounds of their powers they should be prosecuted.

The actual problem is that the President has too much power, not that the next administration should have the right to prosecute them for exercising it.

tines
0 replies
20h23m

The other problem is that we have no idea what "official acts" are.

munchler
0 replies
20h39m

If they're using their official powers they're not culpable

So the President's job is to faithfully execute the law, but he is allowed to break the law while he's executing the law? C'mon.

whoknowsidont
0 replies
10h55m

So many people reacting irrationally

The entirety of lawyerdom? I think I'll trust their take on it rather than bland, disingenuous dismissals.

lunarboy
4 replies
21h30m

Surely the "impeachment exists" arguments are in bad faith. Otherwise, I'm convinced they've abandoned reason.

Impeachment process takes time, and in that window, the president can do whatever. POTUS can even mobilize the army (an official power) to block congress from meeting, since apparently the motive behind the use of official power doesn't matter. If they can't meet, how are they going to impeach.

chasing
1 replies
21h23m

Of course they're in bad faith. The whole idea is to punt accountability off to something else endlessly. "We can't do X because Y already exists to handle that." Later: "We can't do Y because we already have Z." And thus: "X is the proper way to handle that, not Z."

HaZeust
0 replies
19h20m

Precisely. One must understand that the more safeguards we have to enact retribution in these cases, the better. You're not supposed to point to one avenue after loss of another - you're supposed to point towards as many as possible. Before today, the courts were the one we pointed to the most, and they are no longer nearly as much at our disposal as they were before this morning.

goodluckchuck
0 replies
15h57m

Impeachments take time because the impeachments we’ve had so far have tended to be political theater. I have no doubt that if there was a bi-partisan super-majority wanting to remove the president, they’d hop on a Zoom call and have it done by the close of business.

Edit: My example was going to be if the President addressed the nation and declared himself to be king… but Biden literally just did that, reluctantly accepting that he was beyond the review of the courts and accountable to no one but himself.

ImJamal
0 replies
21h9m

If a president is illegally mobilizing an army I'm not sure how this ruling would change anything? Do you think congress would be slower than courts to work this out? If a president was stopping congress from meeting then they could stop courts from meeting as well. Or he could just ignore the courts if it had really gotten that bad...

cdme
4 replies
22h5m

It's remarkable the speed at which the court has discarded any semblance of legitimacy. Perhaps future administrations should simply ignore them and dare them to act.

dawnerd
1 replies
21h48m

And based on what the court ruled they probably legally could just ignore the court and congress.

cdme
0 replies
21h37m

The lifetime appointments clearly aren't working. They should draw from lower circuits on a per term or per case basis and discard the whole lot.

paulvnickerson
0 replies
21h20m

That's nonsense. You should read the ruling [1]. The summary is very readable. For a president to ignore the court and "dare to act" is what dictatorships do, and millions of people die in those cases.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

chasd00
0 replies
21h29m

Perhaps future administrations should simply ignore them and dare them to act.

well.. be careful for what you wish for but i see your point. What's the supreme court going to do? Order your arrest by the FBI? Seems like the FBI would go tell them to pound sand.

westurner
1 replies
3h59m

The Constitution reads:

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

How does the comma matter in contracts?

This:

  "Impeachment for, and Conviction of"
Is distinct in meaning from this:

  "Impeachment for and Conviction of"
Furthermore:

  "Judgement in cases of Impeachment"
Is not:

  "Conviction in cases of Impeachment"
Doesn't this then imply that "Judgement in cases of Impeachment" (i.e. by the Senate) is distinct from "Conviction"?

Such would imply that presidents can be Impeached and Judged, and Convicted.

(Furthermore, it clear that the founders' intent was not to create an immune King.)

westurner
0 replies
2h12m

The Constitution reads:

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
> Such would imply that presidents can be Impeached and Judged, and Convicted.

Convicted just as other citizens with Limited Privileges and Immunities.

OPINION: In the US Constitution, removal upon "Impeachment for" is distinct from removal for "Conviction of". Thereby there is removal from office for both: a) Impeachment by the Judgement of the House and Senate, and also by b) Conviction by implied existing criminal procedure for non-immune acts including "Treason, Bribery, or other high Crimes and Misdemeanors."

Conviction is not wrought through Impeachment by the House & Senate, who can only remove from office.

Neither is Arrest Removal from Office, nor is Removal from Office Arrest.

Thereby, a President (like all other citizens) can be Convicted and then Impeached.

That the Executive's own DOJ doesn't prosecute a sitting President is simply a courtesy.

light_triad
1 replies
3h54m

This shifts the whole debate to what constitutes "official" versus "unofficial" acts. Presumably the president can't order his subordinates to commit crimes, or unlawful orders.

Rep. Adam Schiff gave the following interpretation: "Effectively giving a president immunity for any crimes committed while in office as long as that president can plausibly claim the action was taken in some form of official capacity. It must now be presumed that the president, as king, is immune from accountability."

https://www.militaryjusticecenter.com/blog/2022/03/can-you-r...

7jjjjjjj
0 replies
3h5m

Only the SCOTUS can determine what an official act is. They will decide that anything Trump is prosecuted for is an official act. The point of leaving it undefined is to bounce the case back and forth with the lower court and delay the trial for years.

chasing
1 replies
21h30m

Lifetime appointments for Supreme Court Justices is fucking absurd.

My out-of-my-ass fix is that each Justice is on an 18-year term. Every two years one Justice is replaced. Two per Presidential term.

Makes it legitimately fair. Elect a President, get two Justices. None of this "one corrupt game-show host accidentally gets to appoint half the Court" horseshit.

guywithahat
0 replies
17h3m

If it makes you feel better they all agreed the president should have immunity, they just disagreed whether it should be totally absolute or mostly absolute. The dissenting opinions would basically lead to the same result

vadiml
0 replies
21h13m

Biden need to sign executive order to jail all judges voted for this verdict for high treason of not protecting US constitution. And he will be immune thanks to them.

mjfl
0 replies
20h25m

And they do not have immunity for unofficial acts, which do seem to be many of the things that that Donald Trump is being charged for. The fact that many of the top comments here don't mention this tells me that we are grips of a partisan hysteria. Fortunately, the court is not, and one 'conservative' judge was in the dissent, and one 'liberal' judge concurred with the majority.

godelski
0 replies
21h24m

Federalist 51

  > 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. ... But it is not possible to give to each department an equal power of self-defense. ...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. 
This right here is talking about why there is the separation of powers. This is the reason judges are supposed to be without party. But we all know that this is a facade. But of course it is, when we see how these judges are appointed. How could it be any other way? The recognition here is that there are no perfect solutions as to optimize towards one thing results in a worse outcome (see the other parts of the writing).

I think not enough people have read the Federalist papers. They are an important context to why the US was founded and what problems it was trying to solve. Littered throughout them are discussions of how power creeps and how functions couple. How government can do great good but at the same time great harm. They reiterate the notion that liberty is hard work and many of the writers fear things like parties as they are not only concentrations of power but umbrellas to remove thinking. You can see them wrestle with ideas and that they know they aren't getting them right, but instead try to set a framework that can course correct to adapt to the unknown unknowns.

But however you read them, I think you can and will read that such a conclusion is precisely the thing they were trying to stop. There is no ambiguity in this. They were fighting against monarchs who have written into the law that they are above the law. At least as it pertains to others. And so that's what that phrase means "no one is above the law" that not so literally (because making a law that makes special cases for you would not technically make you "above" the law, but part of it), but rather that the laws apply equally to all peoples and entities. That there are no special cases because there are no "to big to fail" and "too important to prosecute". Because the belief is that if it is wrong for one man to commit an act, then it is wrong for any man to commit such an act.

[0] Federalist 51: https://avalon.law.yale.edu/18th_century/fed51.asp

geekraver
0 replies
3h32m

So the president can’t kill their opponent over a golf game but can order the military to kill their opponent over a golf game. Got it.

In the worst case they might have to resign before being impeached but at that point they are permanently immune.

Germany 1933.

creer
0 replies
21h52m

White House spokesman: "As President Biden has said, nobody is above the law."

Well yes. And since the Supreme Court just clarified the law... Isn't THIS White House the first that might use what was until now a misunderstanding?

camgunz
0 replies
20h57m

Honestly I just don't think the conservative Justices are that smart. Here's Roberts arguing that because something never happened (criminal prosecution of a former president) no one could have reasonably assumed it would happen:

Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.

Literally on the next page, here's Roberts arguing that though something has never happened (criminal prosecution of a former president) it is very likely to happen:

The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.

Just like, full on embarrassing. These guys need better clerks or something.

amai
0 replies
11h3m

It says: Immunity for official acts. Going after your opponents is rarely an official act. Nixon and Co. don‘t have immunity for un-official acts.

Yawrehto
0 replies
1h11m

'Supreme Court Really Hoping Biden Has Morals And Won't Assassinate Them As An Official Act'.

SubiculumCode
0 replies
20h58m

People mistake the Constitution as the fabric that holds our Republic together. Sure the articles stipulations set a framework, but it's built primarily around a common set of mores and walls beyond which is the pale. When a sizable proportion of Representatives, voters, etc, conduct themselves in a way that always maximizes short-term wins and power and and aimed at disempowering the opposition, that framework that is the Constitution is powerless to keep the Republic together. Is only the will of the people to stay together they'll keep them together.

In all our legislative executive and judicial war, there seems to be less and less reason for restraint, for avoiding constitutional crisis, and to grab power by whatever means so that the other side does not. This ruling by the Supreme Court, as many people are commenting on social media, creating Powers Biden too, and there seems little reason not for Biden to pack the court, for the Senate to go to majority rule and rid themselves of the filibuster.

If we keep pushing the boundaries we will fall, or we will reconfigure.

Rapzid
0 replies
21h12m

This is certainly the sort of decision I'll have to read for myself. While I certainly share the concerns, the hyperbole is peak right now and everything is emotional and overly editorialized.

NicoJuicy
0 replies
19h6m

Guess the calm, not insane US leadership could potentially only last 4 years.

Hoboy, I hope there's not another round of Trump...

Kalanos
0 replies
2h23m

The judicial branch is supposed to keep the legislative and executive branch in check. That's how the whole checks and balances thing works.

HaZeust
0 replies
20h43m

Well, I guess this ruling makes me eat my words, almost exactly a month ago, that Trump's 34 felony counts was "a good day" for the spirit of Montesquieu checks and balances in this country:

https://news.ycombinator.com/item?id=40529062#40529905

Sotomayor has channeled her inner-Scalia in her dissent, and she hit the nail on the head. This is now kingship, this is de-facto sovereign immunity.

This ruling was not constitutionally purposivist, it was not textualist, it was not originalist. It goes against the very founding of America in the contexts of its original conception and revolution. This is BAD.

HTG43
0 replies
5h30m

There was no way the Supreme Court was going to make a ruling that didn’t provide a backdoor for former, current, and future presidents. Mainly because it might open the door to some of the decisions a president makes that could be perceived as having criminal fallout. For example, ordering a strike (missile or something else) that results in collateral damage to civilians. Official acts is one of the super broad statements that’s open to interpretation and will take years of case law (if that ever happens) to narrow down to what it actually means.

FpUser
0 replies
21h1m

Congrats. SCOTU have just promoted president to dictator. Now wait for Putin to come.

ChicagoDave
0 replies
21h36m

This is all because very wealthy and powerful people see a future American demographic that doesn’t support their interests and they want an alternate government that can’t stop them.

The problem is what will democratic presidents do with this fundamental alteration of the three “equal” branches that now leaves Congress as the weakest link.

What will republican presidents do?

And of course, what would Trump do?

I think front and center is Stephen Miller’s desire to reverse that future demographic by either incarcerating or deporting anyone that isn’t white or even sympathetic to a white nationalist movement.

This is real people. And very frightening.