This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Trump v. United States, the presidential immunity opinion, dropped this morning. In broad strokes it goes like this:
1. For those acts that are pursuant to the President's "conclusive and preclusive" authority there is absolute immunity.
2. For those acts which are official acts by the President but not covered by (1) there is a presumption of immunity that can only be overcome by showing the prosecution would pose no "dangers of intrusion on the authority and functions of the Executive Branch."
3. For those acts which are unofficial there is no immunity.
4. Those acts for which the President has immunity cannot be used as evidence to demonstrate any element of a crime for which the President would not have immunity.
I think it's just incredible that the six justices in the majority looked at the Navy-SEALs-assassinate-a-rival hypothetical and went "yep, sounds right, no liability." Roberts' majority opinion even mentions the President's orders to the armed forces as one of the things that falls under (1).
I think the way is clear. Biden orders Trump, the six justices in the majority, and let's say the next 2-3 top Republican candidates whacked (just for safety). He probably gets impeached and removed but can't go to jail (thanks SCOTUS!) Harris takes over as President and I think it's unlikely she would also get impeached. Dems don't want to hand the presidency to Mike Johnson. That gives Harris plenty of time to stack the court. Republican convention in disarray due to the deaths of their prominent candidates. Biden obviously out, he'd be ineligible anyway if impeached and removed. Dems probably dump Harris to create a clean break with Biden admin, clearing the way for Whitmer/Newsom/Pritzker/whoever.
The above is fan fiction, of course.
Tell me you are unfamiliar with American military law without telling me you are unfamiliar with American military law.
This is not new, and not the incredibility you think this is, because distinction between lawful and unlawful orders has already litigated and legislated at length, while your incredibility relies on conflating lawful and unlawful actions as both being under the scope of the President's immunity as described by the Supreme Court. The basic Supreme Court rejoinder to your incredibility could simply be 'the President does not have conclusive or preclusive authority to issue illegal orders, duh,' and then point at the Constitutional chain under which the President can give orders.
The American Constitution provides the power "To make Rules for the Government and Regulation of the land and naval Forces" is allocated to Congress, not the President. The President and Executive Branch works through these parameters, in part, through the Uniform Code of American Military Justice (UCMJ), which is Congressional legislation. The UCMJ in, in turn, sets the requirements of obeying lawful orders, and the contrasting limitation on illegal orders. Lawful orders in turn derive from, well, laws and regulations allowing their issuance/execution/funding, while unlawful orders violate the laws.
There is no authority to the military (or the President) to give illegal orders, because the President's constitutional role is to give orders within the Congressionally-defined rules and regulations for giving lawful orders. Orders contrary to those- the unlawful orders- are outside the scope of the President's constitutional role. If they are outside the scope of office or duties, there is no immunity.
This is the very old 'where does 'following orders' apply as a legal defense?', and the established answer is mundane. Soldiers are obligated to follow lawful orders, and thus legally protected even when those orders result in negative consequences, and are not obligated to follow, and thus not protected if they do follow, unlawful orders. Now take this distinction all the way to the top.
By eliminating the category of unlawful orders outside of the broader category of lawful and unlawful orders the President could give, what you have left (by definition) is the scope of lawful orders within the scope of authorities...
...which is the context of the only reference to the Armed Forces in the opinion, on page 14, in a paragraph listing constitutional authorities.
There are reasons the Opinion Dissents don't appeal to the Armed Forces angle, and among them is that the SEAL Team 6 assassination argument is one only protected under this ruling if SEAL Team 6 assassinations are already legal orders to give.
You might as re-express your incredibility at the shock that the none of the Democratic justices thought to argue that the President should be prosecutable for giving legal orders.
This rests under the assumption that the power of Congress, "to make Rules for the Government and Regulation of the land and naval Forces," trumps (heh) the president’s role as “commander in chief of the army and navy of the United States.” The opinion spends ample time dispelling the notion that congress can regulate the president’s article 2 powers. Why do you assume that regulations on what kind of orders the president can issue acting in his constitutionally mandated role as commander in chief are constitutional? You say this has been litigated, but where? Who would have article 3 standing?
Because making Rules for the Government and Regulation of the land and naval Forces, which is what establishes the authorizations and limits to the military, is not preclusive to the Commander of Chief.
The Trump v. United States opinion makes no claim that all of the President's official acts fall within the conclusive and preclusive authorities. From the opinion-:
Given this is literally page 2 of the opinion, which explicitly expands the area in which Congress can regulate Article 2 powers to all scopes on conduct in where his authority is shared with Congress, I propose that the notion that the Court dispelled the notion that Congress can regulate the President's Article 2 powers to be itself dispelled instead as a misrepresentation of the Court's position. An erroneous motte for a much more banal bailey: Congress can regulate what it has the power to regulate, which is not everything the President is empowered by the Constitution to do.
Article 1, Section 8 is still a thing, as are all the military-related aspects of it, which would not be preclusive to the President.
Defense appeals to following orders in the course of unlawful conduct has been as old as corruption within the military and/or war crime defenses, so take your pick. Congress's right to dictate what is / is not law regarding the military regardless of what the Executive prefers is demonstrated through all the military-governing legislations ranging from UCMJ to the late Cold War intelligence community reorganization to basing and expenditures. The standing comes via all normal standing principles.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link