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Notes -
Here's Chevron's overruling. The last cases of the term should drop today, I believe.
Summary:
Chevron, which says that agencies must be deferred to by courts, is gone, 6-3. Chevron is foundational to much of administrative law; this is a big deal.
Roberts, writing for the court, justifies it in large part because Chevron seems to differ from what is commanded in the Administrative Procedure Act.
Thomas argues that it violates separation of powers, in that it is the judiciary, not the executive, who has the right to judgment; Chevron violates that.
Gorsuch argues that it conflicts with principles of judicial interpretation, and so principles of stare decisis (he takes a fairly different view of stare decisis from some other members of the court, though similar to Thomas).
Kagan dissents, arguing that it is a good default judgment when one comes to ambiguities in the text, is compatible with the APA, and usually reflects Congress's will. She sees this as a power grab by the Court.
Loper Bright v. Raimondo
6-3 (or 6-2), overturning Chevron, standard lineup. Roberts writes, Thomas and Gorsuch each write concurrences, and Kagan dissents. Jackson recused herself for Loper Bright, but was present for Relentless.
Chevron overruled.
What is Chevron Deference? In Chevron, in 1976, the supreme court ruled that a two-step process is used in interpreting ambiguous provisions. First, they check whether "Congress has directly spoken to the precise question at issue," then, if not (that is, if it is silent or ambiguous), they defer to an agency if it "is based on a permissible construction of the statute."
We have two cases here, both related to the Magnuson-Stevens Fishery Conservation and Management Act. (I'm sad they made the main case Loper-Bright rather than Relentless, because the name is less cool.) But I won't bother to describe the details, because I'd have to reread it, and they do not matter; the court only took the case to decide whether to overturn Chevron, and aside from the initial presentation of the origin of the cases, the opinions dwell entirely on Chevron, there is not further reference to the details.
Roberts opens the discussion of the merits with reference to Article III of the Constitution. It gives "the responsibility and power" to judge cases and controversies to the federal judiciary. The framers recognized that things would be unclear, and judges would clarify. And it was proper to the courts to interpret the laws—theirs is judgment, unlike the legislature's will, or executive's force. And this was confirmed in Marbury v. Madison. At the same time, the court has long recognized that exercising judgment often involves respecting the interpretations of the executive branch. In an 1827 case, they explained that "in the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provision into effect is entitled to a very great respect." This was especially the case when the interpretation of the Executive Branch was from the beginning of the statute, and remained consistent. In 1878, it said, it gave "the most respectful consideration" to executive branch interpretations because "the officers concerned were usually able men, and masters of the subject who were not unfrequently the draftsmen of the laws they were afterwards called up to interpret." But this was only giving respect; the judges were not bound.
Following the New Deal, there was much more administration. "During this period, the Corut often treated agency determinations of fact as binding upon the courts" provided there was evidence to support them. But they did not defer in questions of law. In Skidmore v. Swift, they said that "interpretations and opinions" of the relevant agency "made in pursuance of official duty" and "based upon specialized experience" "constituted a body of experience and informed judgment to which courts and litigants could properly resort for guidance," even on legal questions. But the weight of that depended on the justification: is it thorough, with valid reasoning, consistent, and so forth. It can be persuasive, but not controlling, in Skidmore. Sometimes the Court would be deferential, as when in Gray v. Powell, Congress had specifically given the agency the power to determine what a coal "producer" was. Likewise, in NLRB v. Hearst "employee" was assigned to the NLRB, and the Court merely was to assess whether the NLRB's determination had warrant, and a reasonable basis in law. But these were exclusively about fact-bound determinations, not matters of law. And in Hearst the court said that questions of statutory interpretation are undoubtedly for the courts to resolve. The courts, following, were not consistent in reviewing deferentially, even in matters of fact. Often they just interpreted and applied as they saw it. And so this should not be read as being the Chevron deference rule. In fact, in 1946, just after the previous cases, Congress codified that courts must "decide all relevant questions of law," in the APA.
The APA was enacted as "a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices." Among other things, the APA discusses judicial review, directing that the court "shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." They are to "hold unlawful and set aside agency action, findings, and conclusions found to be…not in accordance with law." And so it codifies the basic principle that courts judge. Its lack of reference to deference is important, because it does mandate defernce in factfinding, and so where deference is appropriate was contemplated in the act. The legislative history confirms that courts "rather than agencies" are to judge questions of law, as per both the House and Senate Reports.
The APA, then, incorporates the traditional understanding, that courts must exercise independent judgment in determining the meaning of statutes. The courts may seek aid from the relevant bodies, as per Skidmore. In some cases, the conclusion may be that the agency was given discretion. Sometimes this is expressly given, other times the agency may work out details, or regulate under a flexible word, like "appropriate." When the law itself delegates discretion, the court interprets it by recognizing that that delegation is intended, fixing boundaries to that discretion, and checking that the agency made reasoned decisions within those boundaries.
Chevron arose in 1984, addressing whether "all of the pollution-emitting devices within the same industrial grouping" could be treated as a single "stationary source." SCOTUS articulated the now commonly used, two-step rule: (1) check whether Congress spoke to it directly, and (2) if not, check if the agency interpretation was permissible, and if so, defer. It accordingly upheld the interpretation. No acknowledgment of the APA or a doctrinal shift was made. Chevron was not recognized for some time, but was, after a few years, being cited routinely.
Chevron conflicts with the APA's command that the court "decide all relevant questions of law" and "interpret statutory provisions," in commanding that courts are bound to give deference to agencies. This is the case even when there's precedent the other way. It cannot be reconciled by presuming that ambiguities are implicit delegations—while some presumptions are useful for statutes, presumptions are proper "to the extent the approximate reality", and in general, ambiguities and delegations are not the same. Just because Congress did not think of something does not mean that it is intended that an agency resolve that. In other circumstances where ambiguities occur, they are not delegations; courts just have to do their best to work out the single best meaning. The same should happen here. And the proper rule for reading a statute is not to seek a permissible reading, but the best one. Agencies also have no "no special competence" in resolving statutory ambiguities.
The Government argues that they are intended to defer, because agencies have expertise. But often ambiguities are not about technical subject matter, but Chevron would nevertheless give it to the agency. But even when they are technical, it does not mean that Congress gave them authority to interpret. In many other non-agency cases, courts already have to interpret technical matters; and they do so with the help of the parties and amici expositing the matters, with their experience at the disposal of the court. And agency interpretations can still be useful, even if they cannot bind. (Citing a case from the year before Chevron). And so delegating is not necessary to ensure that decisions are "well informed by subject matter expertise." The government argues that it promotes uniformity, but desire for a uniform construction also fails to justify Chevron. Judges interpret it differently. And it is not good to impose uniformity, when that interpretation is uniformly wrong. Rather, follow what Congress enacted. The government further argues that interpretation of ambiguity in statutes amounts to policymaking, and so does not befit the courts. Roberts agrees that policymaking is meant to be left to "political actors." But resolution of statutory ambiguities involves legal interpretation; it is not suddenly policymaking because an agency exists. Judges are to judge without regard to policy preferences. Congress can confer discretionary authority to agencies, "subject to constitutional limits," (I'm pretty curious how much negotiation went into that clause.) in which case courts identify, police the boundaries, and ensure that they exercise their discretion consistent with the APA. Chevron prevents judging, not merely making policy.
Chevron's justification is "a fiction," so the court has since added several limitations on Chevron, to reduce it: "step zero" limits it, in effect, to notice-and-comment rulemaking. But even there, deference is not warranted "where the regulation is 'procedurally defective." Or, if the issue is one of "deep economic and political significance," as then Congress would be presumed to have mentioned it expressly, if it wanted to give the power. It further does not apply to "agency interpretations of judicial review provisions," or statutory schemes not administered by the agency in question. Some have skipped Chevron, or declined to apply steps. SCOTUS has not deferred under Chevron since 2016.
Turning to stare decisis, they should get rid of it. Stare decisis considers the quality of reasoning, the workability, and reliance on it. Each favors scrapping Chevron. Chevron did not consider the APA. Its flaws were apparent, since it has had to be repeatedly limited and "launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning." It's unworkable, as it's ambiguous what exactly ambiguity is. The dissent proves the point, as contrary to Roberts, who thinks that there is a single best meaning, the dissent thinks that Chevron applies when Congress has left an ambiguity or gap. So the court must give up early on interpretation before it finds the best meaning, but there's no clear guideline for how early, exactly. The court's attempts to clarify have added to the unworkability, "transforming the original two-step into a dizzying breakdance," and continues to have more questions about its boundaries, pointing to Cargill v. Garland, the bump stock case this year (May the government waive it? Does it apply to criminal penalties? What about lenity?) And so it is an impediment to "the basic judicial task of saying what the law is." It also is not a stable rule fostering reliance: courts have revised it several times. And in its application, it seriously harms reliance, as revisions in interpretation allow agencies to change their positions repeatedly. And so it undermines the principles stare decisis is meant to promote. They should correct their mistake. Roberts is careful to note that this does not call into question cases based upon Chevron; stare decisis still holds for those.
Thomas writes to note that it violates the separation of powers. (He adds that he agrees with the "lion's share" of Gorsuch's concurrence.) "Chevron compels judges to abdicate their Article III 'judicial power'." But they are Constitutionally required to exercise it. It also allows the executive branch to exercise power not given to it. The executive branch has only the executive power. Chevron allows them to exercise judicial power in interpretation. If you view it rather as letting agencies set policy, then that gives it legislative power. That, too, is not legitimate. Overruling it restores the separation of powers, in this respect.
Gorsuch has a lengthier concurrence, connecting to stare decisis. Gorsuch opens by saying that perceptions of "common law judge" as, judges of the past, able to make new legal rules, and of stare decisis as strictly binding, are both wrong. Common law judges were not understood to be allowed to make new law. Rather, they were examining pre-existing legal systems of the once-fractured England, and applying legal principles common to England and Englishmen generally. Hence, the goal was to find the law, not make it. It bound the parties in that case, but not society at large. Further, past decisions did not bind future judges. They could be given weight, as evidence of the law, but that weight could vary. Former judges were understood to be able to err, and in that case, should be correct. A single precedent was not of overwhelming weight. They mattered more if there were many such precedents, as that was stronger evidence of the meaning of the law. Over time, discarding aberrations, the common law would "work itself pure." Further, different parts of decisions had different weights—the essential reading warranted more attention than stray comments. The latter could be some evidence, but should not be treated "as a serious and deliberate opinion." Additionally, the limits of the adversarial process needed consideration, as not every possible argument was considered.
Gorsuch then turns to article III. He thinks common law "informed the nature" of the "judicial power" vested in federal courts. Other provisions of the constitution present the same understanding. Judges and their precedents could not "repeal or alter" the constitution or laws, per Madison. The opinion regarded the parties. It was only evidence of the proper construction of the law; it was not binding in future disputes. Madison says that judicial rulings "repeatedly confirmed" would be better evidence of the law's meaning than isolated ones. Jefferson thought it would take "numerous decisions" to settle the meaning of statutes. And not everything in a prior decision should receive equal weight. Views beyond the case at hand, for example, should not control, but may be respected. Lincoln presented these views against Douglas. Douglas thought that a single decision of the Supreme Court definitively resolved an issue, for everyone, and those who held otherwise "aimed a deadly blow to our whole Republican system of government." But Lincoln (who Gorsuch sides with), while accepting that they determine the rights of the parties, did not think single judicial decisions settled issues, especially when they depart from the Constitution. Some of these points continued to be echoed afterwards. Majority opinions for some time were written alone, and without consultation by the other justices, because they were understood to resolve it only for the parties.
There are, then, three lessons. First, past decisions may bind the parties, but it does not provide SCOTUS to depart from what the Constitution or the laws of the US say. Per the Constitution, they must amend them or pass legislation through the democratic processes. Hence why the Court has often said the stare decisis is not an inexorable command. The Court has stressed the importance of correcting errors of constitutional interpretation, as they con only otherwise be corrected through amendments. It has been less willing in statutes, but even there has overruled longstanding decisions.
Gorsuch notes that under the Warren and Burger courts, it would overrule about three cases per term, many of them important. More recently they have only overruled one or two per term.
Secondly, while judicial decisions may not supersede, they do merit respect. Precedent can serve to pass down wisdom. The weight afforded that precedent may depend on several features. First, reasoning, as the primary power of the precedent is in persuasion, and poorly reasoned cases do not provide good evidence of the law's meaning. Second, consistency with other decisions, as it is more likely to be correct when it is of a piece with other law, rather than unmoored from it. Workability and reliance are usually not reason enough to stick to things on their own—there is almost always some group that wants to keep things as they are—but they can serve to point to clues that some decision "is right in ways not immediately obvious to the individual judge." The lesson, then, is that the judge should not be guided solely by his own impression, but must "self-consciously test his views against those who have come before, open to the possibility that a precedent might be correct in ways not initially apparent."
Third, judicial opinions should not be read like statutes. Different facts and legal arguments may change the outcome. Stray asides will occur, but cannot control judgment. Opinions should not be combed through. Stare decisis is a tool of judicial humility, not hubris.
Turning to Chevron. Each of those three lessons is relevant.
First, Chevron deference contravenes the law passed in the Administrative Procedure Act. As Roberts had discussed, they are directed to "decide questions of law," and "interpret constitutional and statutory provisions." But under Chevron, they abdicate much of that responsibility. Agencies decide, and may change their mind. Chevron did not bother to cite the APA. It depends on a "fictionalized" statement of legislative desire, in supposing that Congress wishes to delegate, even when it has given no indication of that (citing Kagan's work, before she was a justice.) Its proponents see that as a good policy judgment, but judges have no right to elevate their own fictions above law. Some (pointing to Kagan's opinion) may think that the APA decides poorly in arranging judgment, but it is Congress's opinion that should control, not theirs. And so this would violate the first lesson, in that they need the humility to yield to the law. (A footnote: the dissent suggests the APA allows for Chevron, citing "the finest administrative law scholars," but the APA does not command deference to law professors. And the list of scholars is not complete, so he adds Breyer, who admits that it conflicts with the APA (yes, the one who became a left-leaning supreme court justice), and Kagan's reference to it being fictionalized. This is hilarious. Always read the footnotes.)
From lesson two: stare decisis requires careful testing against work of predecessors. This humility counsels to remember that precedents that are more broadly endorsed over more time, with more coherence with overall law, are entitled to greater consideration than those that are not. Their predecessors considered interpretation of the law peculiar to the courts, from the time of the founding of the Nation. See, for example, Marbury v. Madison. Court's have been willing to give great respect to contemporaneous and consistent views of coordinate branches about the meaning of a statute. But that did not entail deference. It was not bound. The dissent points to a few cases in the 1940s, in which, Gorsuch admits, the Court "toyed with a form of deference akin to Chevron, at least for so-called mixed questions of law and fact." E.g. Gray, Hearst. But that did not last, as in Skidmore the Court returned to the old path. They expressly rejected a rule like Chevron. Chevron is a break from decisions, not a continuation, and nearly defied them.
Additionally, it does not fit well with other portions of law. For example, after abuses in the colonial era, the Constitution attempted to ensure judicial independence under various provisions. Chevron undermines that, but preventing judges from exercising judicial power, forcing them to abandon the best reading, and repeatedly changing it, guaranteeing systemic bias in favor of whoever holds executive power. It undermines also the due process principle that no one may be a judge in their own case. Further, construing statutes as a reasonable reader would have read them when the law was made ("textualism") is traditional, confining judges to lawfinding, not making, and serves the due process principle of fair notice. Judges could not simply change out meanings as the meanings of words changed, without legislative revisions, or the people would be "slaves to their magistrates." But this does the same constantly changing the meaning and revising the law, except with bureaucrats rather than magistrates. It further conflicts with lenity: that ambiguities in penal laws should be against the government, and in favor of individuals. This serves to safeguard liberty, and strengthen the separation of power, but putting punishment more squarely apart from the judicial deparment. But under Chevron, parties often use ambiguities to penalize. Overall, this transfers powers to Article II, tilts justice to the most powerful, legal demands change frequently without corresponding changes in law, and people must guess about their legal rights. All this is a sign that a wrong turn has been made. (Footnote: the dissent characterizes it as a canon of construction or a presumption, and so it fits with law, but presumptions and canons are usually older than the United States, and many protect the Constitution, like the federalism canon presuming that federal statutes do not preempt state laws, or the presumption against retroactivity protecting the Constitution's ban on ex post facto laws. But Chevron undermines the Constitution's promise of an independent judge, and conflicts with the previously listed host of legal presumptions.)
Workability and reliance also serve to show that it does not comport with the "historic tide of judicial practice" but is an "aberrational mistake." Chevron has had to be supplemented so many times that it cannot be agreed how many steps it requires. In step zero, Mead said that, before deciding whether Chevron applies, courts must decide whether Congress meant to delegate authority to interpret. But when should that be? (I don't quite follow the complaint that follows.) Mead's test proved also to be indeterminate, and has often been ignored. In step one, it is unclear when it is ambiguous or not. In step two, there is disagreement when interpretation is reasonable, but wildly different standards of reasonability there are possible, and in use (he cites Kavanaugh, before he became a justice). In the cases before the court, as they worked their way up to them, some thought that the act was ambiguous, and the agency's regulation permissible. Some thought it unambiguous, prohibiting the rule. Some others thought there was "clear textual support," but would not say which step of Chevron that was due to.
With regard to reliance, "the whole point of Chevron deference is to upset them." Executive officials can change the interpretation at any time. Individuals can never be sure of their legal rights and duties. In Brand X, during Bush's administration, they allowed a rule to change; the same rule was changed under Obama, Trump, and Biden—four changes total, within twenty years. This hurts reliance. This especially hurts ordinary people, not large entities with lobbyists persuading changes of the rules, and lawyers keeping track of current requirements. Gorsuch cites two opinions that had come his way of people hurt by instances of Chevron, the latter of which involved a change in law, as well as other opinions in other courts to similar effect. The Government acknowledges that Chevron is heavily in favor of the government, against many individuals. But it thinks that it is too fundamental and important to undo, setting ground rules. But the proper ground rules are the Constitution, the APA, and precedents, not judge-made fictions.
Onto the third lesson (recall: judicial opinions are not like statutes). In Chevron itself, many of the cases cited supported respectful consideration, not deference. But the opinion itself spoke differently. But this was not the formulation of the government, so there was no adversarial engagement. The APA was not considered. It did not address contrary precedents. It "barely bothered" to justify the deference. The reasoning was not of high quality (as acknowledged by supporters). It was not immediately realized that it was to usher in a revolution. Of the 19 cases in the next term related to deference to statutory law, Chevron was cited once. But it was only with Scalia that it began to change, which he admitted was a sharp break from prior practice, but advocated as it would be easier to follow. But, in fact, it was not, and Scalia later recognized his error. (Gorsuch notes that some of Scalia's motivation was to deal with judges ignoring plain meaning and turning to legislative history and purposes. Scalia saw Chevron as likely to prevent that. But the better solution is returning to textualism, which he later championed, and was widely successful.) Other members have also decided that it was problematic, since, and it has not been applied by SCOTUS since 2016. This includes in technical matters. And so this cautions against "continued reliance on Chevron's stray and uncovered digression. The Supreme Court has over 500 volumes of cases; there is something out there supporting nearly anything. It is not their place to pick passages they like and demand perpetual obedience to them; that turns stare decisis from humility to judicial opportunism.
Respect for precedent "keeps the scale of justice even and steady," but does not require or tolerate refusal to correct mistakes. The Supreme Court had overruled itself by 1810. It overruled itself now less frequently than under Warren and Burger. Per Justice Douglas, the longest serving justice, in his experience, new supreme court justices would begin revering precedent, but would over time turn to the constitution, rather than predecessors' interpretations thereof, reexamining them. On the other hand, judges would issue "new and startling decisions," and demand they be followed under stare decisis. Chevron is such a revolution, masquerading as a status quo. This will just mean that courts will do as the Supreme Court has done since 2016, and as all courts did from the founding until the 1980s: resolve cases without systemic bias towards the government. And so proper respect for precedent counsels precisely the course that they are taking. "*Stare decisis'*s true lesson today is not that we are bound to respect Chevron's 'startling development,' but bound to inter it."
To the dissent. Kagan writes. She opens with a summary, framing Chevron as "almost obvious" and the majority as power-grabbing.
The problem, she opens, is that regulatory statutes often contain gaps. Sometimes they are intentional. Congress may have wanted the agency to fill it in, and figured the agency would know better than Congress. Or, Congress might disagree over some question, and so leave it to the agency. Other times, they might be accidents, whether from sloppy drafting, or the limits of language or foresight, or due to future, unforeseen issues. The matter may be too varying to be captured in its every detail.
Kagan gives some examples of the problems Chevron confronts:
All these are ambiguous, and not settled by Congress. There is no "best meaning." So who decides? The presumption, or default rule, should be agencies, as the court has long thought. (Kagan notes that presumptions like this are common. For example, with the presumption against extraterritoriality, the Court assumes Congress means statutes to apply only within the United States, unless Congress makes the opposite clear. Likewise, presumptions exist against retroactivity, or repeal by implication. In all these, Congress legislates against that stable background rule, and so they are reliable guesses as to legislative intent.)
Why might agencies be deciding be better? First, they often know more about the subject matter. See the protein example, where judges might not even know what it means, or the geographic region example, where judges might know the most relevant and important senses in which regions might or might not be distinct. With their expertise, agencies could better decide.
Second, the agencies would better know how a "complex regulatory regime" functions, and what is needed. In the region example, in the case of squirrels, the region could consider other examples. Kagan cites this as comparable to common law (no doubt with Gorsuch's concurrence in mind) making better decisions after seeing variations on a theme. Or in Medicare, considering different approaches will lead to a better understanding of what makes practical sense.
Third, the reflect that resolving statutory ambiguities is often a question of policy. That is plain from the Grand Canyon example; "substantial restoration" is clearly meant to be a policy decision, not one where judges determine the specified number of flights. Or Chevron's "stationary source" requires reconciling competing interests.
Deference is not always appropriate. The court has fine-tuned it to strip out cases where there is no reason to prefer the agency. These are not a flaw in the scheme, contra the majority's presentation. It makes sense not to apply it where it is not the relevant agency, or did not use its rulemaking authority, or in extraordinary cases of vast significance. Such restrictions "give interpretative primacy to the agency when—but only when—it is acting, as Congress specified, in the heartland of its delegated authority."
That framework reflects sensitivity to the roles of the branches: where Congress has spoken, only its judgments matter, and courts decide that. When that is not the case, it is more fitting if the agency does that, for the reasons above. "The court does not insert itself into an agency's expertise-driven, policy-laden functions."
The majority responds, unconvincingly (she says), that agencies have no special competence in resolving ambiguities in regulatory statutes. But deference only applies to fill statutory silence. The courts do not have special competence in determining questions of statutory interpretation like those listed in the examples given—agencies do. Secondly, they complain that gaps do not necessarily indicate congressional intent that agencies should decide. Kagan agrees that that isn't necessary, but Chevron is a presumption, what the default is. And this is a better default, because of the reasoning above. And even though many ambiguities are unintentional, it would still want the agency. And if Congress would do otherwise, it need only say so, but it has only twice (as per her knowledge), in hundreds of statutes, done so.
The majority mostly argues from the APA. But the APA does not resolve the Chevron question, as it does it is indeterminate on the matter. It does not provide any standard by which the court should review (deferential versus de novo), merely that it should. (This applies also to the legislative history.) In other contexts it specifies standards of review—deferential, with respect to fact-finding and policy-making—but here it does not. And within one specific portion, it refers to de novo review.
Most of the administrative law scholars of the time thought that the APA allowed deference: Jaffe, for example, says that courts should check if there is discretion, and defer if reasonable, which looks not far from Chevron. The Supreme Court gave no indication that the APA rejected agency interpretation, even though it did not always give the deference itself.
Kagan argues that 706 was generally understood to display the state of law at the time regarding judicial review, but they were, shortly preceding the APA fairly deferential. And so the relevant standard for interpreting it is that time period, not the overall backdrop of the nation's history. In Gray, widely considered the leading case on such interpretations, it deferred to the agency on the term "producer." In Hearst, they deferred on the term "employee." She rejects the majorities "taking a single stray sentence from Hearst to suggest that both Hearst and Gray stand for the opposite of what they actually do." So then the statute would allow for deference. She notes that the majority first seem to distinguish between purely legal and mixed. She'd be glad if they confined it to the purely legal, but does not expect that they mean it so. Often terms are defined through specific cases. (E.g. are newsboys employees?) And so the majority's distinction does not make sense; if it defers on whether newsboys are employees, it defers on what "employee" means.
Kagan also argues that the Court's inconsistency in applying deference would mean that 706 could not be argued to prohibit deference—it was understood (as the majority agrees) to represent prevailing law. So today's decision is groundless.
Abandoning it subverts stare decisis. This decision "will cause a massive shock to the legal system, casting doubt on many settled constructions of statutes and threatening the interests of many parties who have relied on them for years."
Chevron is entitled to particularly strong stare decisis because Congress remains free to change it, unlike in constitutional cases, and Congress has not done so. It could have abolished it across the board by amending the APA, which it has not done, or more narrowly in specific laws, which it has hardly ever done. Second, it is much more than a single decision, but has been upheld by the Supreme Court over 70 times, and cited by federal counts over 18000 times. It is "as embedded as embedded gets in the law." The majority not using it since 2016 was merely in preparation not to use it, and so making up its own justification for its overturning; she thinks this a mockery of stare decisis.
She rejects the claim of unworkability. While, sure, judges disagree on ambiguity, there are other cases where there are rules about ambiguity: in contract law, you rule against the drafter in ambiguous cases; in lenity, you rule in favor of criminal defendants. There are numerous other cases. Chevron actually, per studies, increases agreement between judges. And as to the second argument, about needing all these exceptions—well, there aren't that many, and they aren't hard anyway, in ordinary cases.
The majority's alternative, on the other hand, isn't easy: judges who argue about Chevron's "ambiguity" will definitely disagree about what exactly applying Skidmore's "respect" means. And there are complexities, requiring instance-by-instance resolution, in applying flexible words like "appropriate," which is not at all rare.
And the strongest stare decisis factor is against overturning Chevron: it would be a massive "jolt to the legal system." Congress and agencies have depended on it, and presupposed that statutory ambiguities were to be resolved by the agencies. She does not think the majority's alleviation of the problem that decisions held as reasonable under Chevron not being overruled for that is good, but insufficient. Many such determinations were never challenged. Courts will undoubtedly come up with "special justifications" to bring it up.
With that quote of Chevron, Kagan opens her conclusion. She poses the majority as not respecting Congress' judgment. As giving courts the power to make policy calls, including weighing competing goods. Putting them at the "apex of the administrative process" in every context. Courts will command federal regulation everywhere, which is not what Congress gave them. And all this involves disrespecting precedent, without special reason, and producing especially large disruption. And this is not a one-off in its treatment of agencies, see SEC v. Jarkesy.
My thoughts:
I thought Roberts was better in his interpretation of the APA, though, looking at the text of it, it requires a little care. I don't think Kagan's right on the reference to de novo in it; that does seem to be the baseline there; and her interpretation of the legislative history seems wrong. I think the majority presents Hearst fairly, as allowing deference in fact, but not in law. Kagan's wrong to suggest otherwise. Kagan is right that there are often genuine ambiguities; I think the majority left enough room for treating the deliberate ones as delegation. She's also right that effects will be sweeping. We'll see if it shows up in the media in coming years. I wonder if Kagan should be considered correct with regard to statutes formulated after a theory of deference was considered established, at least in certain domains? As then Congress would have expected ambiguities to be treated with deference. Overall, I'm with the majority. But Kagan reads as significantly more serious than, for example, Sotomayor dissents seem to. Gorsuch and Thomas seemed generally correct in their interpretation of history, though some of their prescriptions would be pretty radical.
To me, this was always the only issue. I mean yes, separation of powers, but also just plain reading of statutes.
Courts can't abdicate responsibility to interpret law unless Congress has set up some alternate arrangement, and in many cases the Constitution itself defines what cases the Courts MUST hear, which cases they MAY hear, and to what extent Congress can create alternative setups (such as immigration courts) that pull the duty of statutory interpretation away from the Article III Courts.
I wonder how SCOTUS would handle it if Congress explicitly went in and changed the APA to more-or-less codify the Chevron Deference standard?
Some members might reject it anyway (e.g. Thomas), but it would hold sway with enough to stay law, I imagine.
The Constitution very much grants Congress the power to establish lower courts with special functions, and define the rules those courts operate under.
I suspect that even Thomas might accept an unambiguous law which clearly delineates that the review of Administrative Judge rulings should be based on assuming the are valid on their face, unless contradicted by superior law.
But under the very strictest separation of powers examination, perhaps Congress isn't allowed to give up that much control over the creation of law, without an Amendment?
I think given how much power Congress has already given up to the executive without issue, it'd be hard to argue against this one. Then again, the devil is in the details.
I think some justices think that what's already been done is unconstitutional (for example, giving rulemaking authority). Yes, this is radical.
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This was my immediate first question. What if Congress looks at what happens, writes a new bill fixing or superseding the APA that more or less is designed to re-establish what was until recently the status quo with better language reflecting those tradeoffs? Would the SC still have a fundamental, role-of-the-courts problem with that new bill? Or did enough of the case depend on the APA that the SC would sit back and go, nope, looks like everything is fine, proceed as before!
From what I gather, everyone but Thomas would be on board, right? This would make me feel a fair amount better in that Congress can easily (ha!) change it up if this creates a massive nightmare backlog of legal cases for judges as I expect.
I think this would run into the non-delegation doctrine. Congress can grant more authority to agencies in any specific case that would have been covered by Chevron, but if they try to make a law which says that if Congress doesn't say otherwise, the agencies get to make rules in general, the court seems likely to balk.
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But even Chevron (for all its ills, and I repeat that I think it was wrong) said that if the statute is unambiguous upon a plain reading that's the end of the inquiry.
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I wrote a bit about my frustration with this framing in another spot and I think the commentary applies here:
For a question like, "When does an amino acid chain polymer count as a protein?", I do not expect that a federal judge will be particularly knowledgeable on the matter. What I do expect is that reasonable people can differ and that the very existence of litigation on such a question suggests that there is in fact a subject matter expert that disagrees. The FDA, its staff, and its attorneys are not actually neutral truthseekers that should be deferred to - they're one party to litigation in which an expert thinks they're wrong. In overruling Chevron, the Court isn't saying that judges themselves are better experts than the FDA staffers, they're saying that the FDA staffers are not entitled to preferential treatment in an argument against a litigant, that they must make their argument in a way that a neutral third party finds compelling rather than just saying, "I am the science" with no recourse for their opposition. Chevron was always an absurd dereliction of duty and in deferring to agencies effectively granted them an arbitrary power level as long as they could muddy the waters enough to avoid clarity.
Right. Roberts sort of says that (that the competing parties will have the expertise needed) on pages 24-25.
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It also ignores that many cases don’t require factual knowledge but are merely policy choices made by the agency (ie legislating).
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My beef with this is that some Congressional statutes are simply so poorly drafted that a neutral third party doesn't really have any solid basis on which to evaluate those arguments. To be more precise, this isn't about evaluating arguments for or against a policy or interpretation. This is about arguments about the meaning of the law (statutory construction, in fancy words). And an intellectually honest neutral third party might at some point throw their hands up and say that the law isn't written clearly enough to decide.
Of course, that's not an option in a court case. The case has to be resolved, even if what Congress wrote is vague, uninterpretable or even self-contradictory nonsense.
And for what it's worth, I do agree that Chevron was wrong. But it's not such a rosy future as "neutral third parties will now just evaluate arguments on statutory construction". This decision (rightly) forces Congress to specify clearly what it intends, but any measure of past experience shows that is it not up to the task.
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Is this a fair thought experiment for reframing the principles behind the Chevron decision in way that might change how opponents are predisposed to think about it?
Or does this analogy not map very well to the same arguments?
Given my complaints about the capricious and at times outright malicious behavior of the ATF, I endorse this analogy.
Furthermore, it's barely an analogy. The ATF, who are federal law enforcement, love to invent novel rules on the fly and switch to a new interpretation of the rules whenever it pleases them.
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It's our final SCOTUS day, and the surprisingly heated decision of Corner Post was released. There's a fair amount of juicy goodness in the decision, as well as the other decisions released today, but I specifically want to focus on the following lines in the dissent:
The Court, for its entire existence, has steadfastly refused to provide advisory opinions such as this comment. The Court does not weigh in on proposed statutes, let alone propose statutes itself, viewing it as a violation of both separation of powers and as outside the scope of the "case and controversy" requirement. Interpreting an amendment of a statute before the statute is even written goes strongly against the Court's norms and its powers. For all the discussion that overturning Chevron generated about moving power around between the branches, the Corner Post dissent is a shocking example of attempted judicial over-reach. Justices do not get to use the Court to urge Congress to enact legislation that meets the Justices' policy preferences.
However, an obscure APA case is a lot less interesting than the other decisions made today, and I doubt Corner Post's dissent will get much airtime with everything else going on. It's difficult to square with the liberal Justices' current discourse on other matters, but in a 6-3 I doubt that will matter much either.
Eh... kinda. The Court does not give solely advisory opinions -- that's the steelman for the court punting as moot even in the face of voluntary cessation -- and famously refused and continues to refuse to answer when pressed for questions before a law is passed. And it supposedly won't comment about future cases in present ones.
((Modulo the various exceptions.))
But as to whether opinions can advise about future laws, well, Alito's concurrence in Cargill doesn't say that a machine gun ban would be constitutional, but it's not exactly subtle in encouraging Congress to pass a law, and that's just a recent one. When it comes to dicta, the rule against advisory opinions have always been held closer in theory than in the breach.
I think when it's a case on statutory construction, it's kind of obvious that Congress can step in and do whatever is needful. The dicta here seems more about placing the court's role as arbiter of statutory construction in the right scope.
That's different from dicta on a Constitutional matter (e.g. Scalia's dicta in Heller about longstanding law) which are more relevant tea leaves since the Court is the final arbiter of those matters.
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The Court routinely offers advice to potential litigants in this manner directly in majority opinions. Elements of the opinion not necessary to reach its conclusions are usually referred to as "dicta" and are not considered legally binding (although of course the question of which elements of the opinion constitute dicta is itself often controversial).
Advisory opinions are forbidden insofar as the Court won't rule absent a case or controversy, which requires a plaintiff with standing.
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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.
In b4 someone unironically argues that Biden could order the military to arrest every Republican in the country and they would do it instead of mutinying.
Of course there’s presidential immunity for official acts. We can’t be having presidents going to jail all the time like Illinois governors.
Why not?
Setting aside he Illinois governor bit, it's insane to expose the President to prosecution for executing the duties of the Presidency.
Congress is empowered to impeach the President. The Senate is empowered to try and remove him. The people are empowered to elect his opponent. This is how the system was designed.
Giving every one of the 10,000 podunk judges and DA's across the nation these same powers is madness. It's a heckler's veto. Some corrupt DA in Georgia shouldn't get to override the will of the people.
Why? If the president can't do his job without committing crimes, maybe we need to either review his job or the law. The constitution certainly doesn't suggest immunity from criminal liability.
Furthermore, is there are reason why this standard is particular to the presidency and not any elected official? Shouldn't Bob Menendez be accountable to his voters, not some dodgy DoJ official? Who are federal prosecutors to to contravene the will of Illinois' people by charging Mike Madigan?
Even if we did "fix" the 50,000+ pages of the U.S. code, as well as all state and local laws, there's no way to create a law code that can't be interpreted maliciously by one of the thousands of legal jurisdictions.
Scale matters. The severity of the crimes and the scope of the office should come into play.
But it really comes down to pragmatism. Do you want to be right, or do you want to have a functioning country? The only reason that elected officials are not routinely prosecuted is because it is not done. This is the mos maiorum of our country. The reason that parties haven't (thus far) used lawfare against their opponents is because they value the country over their own ideological victory.
Again to me, you want any prosecution of the president to be so clear that it is bipartisan. If you do that, then the risk of spiraling lawfare is heavily limited.
There's another stable equilibrium: One side is so dominant that they can simply impose their will on the other side.
IMO, the impetus for the lawfare is that Democrats thought they had fully captured the institutions, and could now impose their will with no risk of retaliation.
We're at this weird spot in history, due to social media, where the elite seems a lot more unipolar than it really is. If you go by the official statements of corporations, media, and universities, then like 90%+ of the elite are fully woke. But I think this is a false consensus, and there are a lot of shy Tories out there. Elon Musk liberating Twitter really freed up the discourse. A lot of elites are coming out of the closet now. David Sachs can host a Trump fundraiser in San Francisco and get a lot of donations with almost no pushback.
Sure I guess. But when one faction controls everything law qua process is irrelevant. But when they are multiple factions law inherently needs to be a process. I’m suggesting a process.
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IMO this is a bullshit story right-wingers tell themselves to rationalize power grabs. Throw in regular ominous remarks about the dangers of prosecuting (their) politicians just so people understand and it looks more like a story of incredible Democratic naivete where they thought a conservative judiciary would act in a principled manner rather than closing ranks to protecting their guy.
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I mean, there are shades of this with the Elon Musk stuff since that's not even pretending, but with Trump it's more like "well, we're obviously correct, so people will agree with us, right?".
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They can already do this.
We already prosecute elected officials. If we concede to Trumpist threats every time it comes time to punish him for his lawlessness, we won't have a functioning country. Why not say the stubborn insistence that Trump must be impervious to prosecution and punishment is a threat to the stability of the country because the message it sends is that procedural politics are futile? If corrupt politicians will never face justice, why not deliver it yourself?
Why haven't you delivered it yourself? There must be real reasons within your psychology right?
I feel like our confusions here are similar. Rule of law seems unreasonably efficacious upon the people of this nation.
But the answer must reside within the both of us. Why haven't you, or I, personally, gone out and made killing some lawless politician or another our life's work?
For me, alongside being a bit selfish wrt how I spend my life- My certainty that it would be a net good for the people of this nation or this planet is quite low. Assassinating Trump would trigger civil war 2.0 or something just as bad.
It would also be a major defection... which isn't the sort of thing I stand for- except when I deem it absolutely necessary to prevent an 'always defect against jesusbot' equilibrium. I don't judge us as there yet. My life is far too blessed for that.
I'm sure you have similar reasons. For now at least. Maybe we are approaching that tipping point... where skilled and smart people start stepping over that edge and heads start rolling...
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There are too many hypothetical crimes. 3 felonies a day and all. A malicious reading of laws makes us all hypothetical criminals.
The Constitution states the responsibilities of the executive. They can not also be illegal. No mere law supercedes the Constitution.
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Well, not to put too fine a point on it, but when the Roman Republic tried that they descended into a series of bloody civil wars. Once prosecuting ex-politicians was on the table, their leaders realized that letting go of power meant being at the mercy of their successors. The inescapable conclusion was that the only thing to do was to never, ever let go of power. Eventually they emerged as an Empire ruled by a succession of military strongmen.
So that's one reason.
If you never hold politicians accountable you encourage corruption and tyranny. Holding politicians accountable means prosecuting them when they commit crimes.
We already prosecute politicians. The constant special pleading for Trump makes no sense.
I’m for accountability. But I think the forum for that is impeachment. The reason is there is too much risk that with venue shopping one can goose the jury and make the conviction political (see the NY trial as an example). Impeachment likely requires bipartisan agreement the conduct was beyond the pale. That, to me, is the correct approach.
McConnell seemed pretty pissed about J6, and didn't defend Trump at all. His stated argument was that Trump was already out of office, and therefore the judicial system was the correct forum. For all the talk about lawfare and political hitjobs, impeachment is also a highly political process, and Trump was likely protected from impeachment because McConnell didn't want to lose Trump voters.
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If you only hold opposition politicians accountable, you are also encouraging corruption and tyranny. Hence why prosecutions of politicians needs to be even-handed, and why counter-corruption campaigns are an archetypical narrative justification for politically-motivated prosecutions by tyrannical governments.
Because you're dismissing objections as special pleading, rather than acknowledging like-to-like contemporary actions (and lack of actions).
Naturally if you ignore context, context-based objections likewise can be ignored as senseless.
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I've seen stuff like that repeatedly on reddit today. "So Biden could just Seal Team 6 every republican appointee on the Supreme Court", etc, etc.
It is weird. It’s one of those “my enemies are soooo stupid” takes that makes you question why the Redditor didn’t stop and think “maybe I misunderstand their argument”
Unfortunately, that's just the state of public discourse these days. Basically everywhere but here, people are whipped into a froth either against the right or the left, and believes themselves to be in an existential fight for our society itself. People are, as Men In Black put it, "dumb panicky animals". And because of that, they are acting very stupid right now.
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I've met former special forces guys. I'm pretty sure they'd refuse to carry out domestic political assassinations ordered by a senile democrat when in the service, and I'm pretty sure this is generally true of actually-killing-people jobs. Someone with sufficient loyalty to just have the tip of the spear eliminate his political opposition does not have to worry about whether the law allows him to do so. He simply does it.
I'm about 98% sure that Biden couldn't find a big enough force to arrest Abbott or Desantis if they threatened to resist. I'm about 90% sure Trump would be in the same boat with Newsom or Hochul.
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I mean, if he could do that, worrying about prosecution wouldn't stop him. He'd just Seal Team 6 anyone who tried. He could pardon himself on the way out of office, or more likely just remain President for Life.
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Yeah but also like no. Like fuck no.
Immunity from prosecution =/= the president can do whatever he or she wants. Still plenty of precedent, code, and constitutional unambiguity on the powers of the executive.
Immunity from prosecution is important because otherwise you could into this nightmare (totally not what is happening right now) scenario where former presidents are lawfared to death because BOO OUTGROUP.
The left keeps fucking around and finding out. House speaker shenanigans, Biden age issues, Trump immunity, student debt SCOTUS cases .... they keep forcing the issue because it fits their narrative and then after contact with reality it blows up. I am truly astonished at this repeated lunacy.
Eventually, if you don't select "tell the truth" from your available options, it becomes your only option and not in a way that favors you.
How on earth are "House speaker shenanigans" the fault of "the left?"
The conservative take is that McConnell has only returned in kind escalations by past Democratic speakers, with the blocking of Miguel Estrada predating the blocking of Merrick Garland, and the detonation of the filibuster for judges in 2013 predating the death of the filibuster for justices in 2016. Even then, noting that it was limited to official acts (eg, McConnell hasn't given false claims about Biden's tax returns on the House floor).
I don't think that's entirely honest -- McConnell hasn't 'he won, didn't he' in no small part because every Republican knows it wouldn't work rather than some sense of fair play, and there have been some conservative escalations like the attacks on ACORN -- but it's more fair than not.
What does McConnell have to do with "House speaker shenanigans?"
Ah, yeah, that's fair.
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House democrats could've saved the speakership of Kevin McCarthy but they voted as a whole bloc not to help him, thus deferring to the Republican Crazy 8 (Bob Good etc.). At the time, this was pitched as the Dems maybe "holding McCarthy accountable" or playing self-assessed 4D chess to "let the Republicans self destruct."
Except it was just an all around stupid idea and mostly the Dems totally failing to see literally one step ahead.
Mike Johnson is now running circles around them and Jamaal Bowman lost his seat (with more like him to follow). Hakeem Jefferies is in charge of a riverboat dumpster fire of a caucus.
Again, fuck around and find out. These are pretty easy to forecast bad decisions if you're playing in the realm of reality and well analyzed cost-benefit tradeoffs. If, on the other hand, ideological narrative purity is the rule then this is where you end up.
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He got ousted because he pushed a bill more Democrats voted for than Republicans. The Democrats rewarded his magnanimous bipartisanship by knifing him in the back alongside the people he betrayed on his own side of the aisle.
Precisely. From the Democratic perspective, he pushed Cooperate, and the Democrats pushed Defect. From the perspective of the Freedom Caucus, he pushed Defect, and the Freedom Caucus responded by pushing Defect.
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At some point it all boils down to the fact that the congress refuses to congress in the last couple of decades. The president can't assassinate anyone if they can't pay salaries of the assassins.
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Generally, the ruling makes sense to me: neither Congress nor the States may criminalize the presidency itself. Acts such as firing generals or political officers at the agencies are protected and are not subject to review. Acts further away from the core are subject to commensurately more scrutiny. Just the same, the States may not criminalize the act of ruling against them in court and then arrest judges. Assassinating uncooperative judges is not a core function of the office and would be subject to review.
Clearly we need some balance here. A narrow ruling would result in opposing states’ AGs bringing endless criminal charges against the sitting president, effectively making the office subservient to the states.
The peaceful transfer of power will only exist as long as we don’t prosecute our political rivals as such. If the penalty for holding office is jail, may as well just hold onto it for as long as possible.
For some reason this problem only seems to come up with one specific guy. McConnell isn't buried in criminal accusations; neither is Desantis, Abbott, or pretty much any other major Republican leadership figure. Maybe Trump really is just unusually shady?
Spoken like a man who does not remember Fitzmas.
"No reasonable prosecutor would bring such charges."
If Trump were unusually shady, the absurd amounts of scrutiny and procedurally-illegitimate attacks levied against him would have destroyed him already. We can actually observe the norms that have been violated and the procedures abused in an attempt to destroy him, and compare these directly to the treatment other politicians enjoy. It seems quite clear to me that he is, in fact, not particularly shady, if what they're hitting him with is truly all they could find.
For the specific examples Skibboleth brings up, and the specific term 'criminal accusations', I would also point to the various DeSantis kidnapping fanfiction, or the "Abbot drowned immigrants to Texas".
Ring me back when they're charged.
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What norms have been violated in the attempts to prosecute him?
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None of those other figures are subject to the jurisdiction of blue states.
I really doubt that. I do think he is unusually hated and the rhetoric we use to describe him is off the chart heated.
Trump's major cases are in Federal court or a red state. Why would the Democrats not simply cook up fraudulent Federal charges against their other political adversaries as well?
You seem to have forgotten Trump's New York case.
TheMotte has confidently assured me it's no big deal.
This isn't a rebuttal or anything, it's just specious argumentation. TheMotte does not speak with one voice - if you're going to drop a low-effort sneer, it should at least be correctly targeted*, and this isn't.
* But actually, don't drop low-effort sneers.
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Georgia wants to prosecute Trump, and that’s a red state.
It's the bluest county in a red state. If the case gets transferred due to Fani Willis' scandals no other DA is going to pick it up.
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Biden won Georgia - it’s purple.
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I mean, Ken Paxton is buried in allegations, but it doesn’t seem disputed that he’s unusually shady.
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Or Trump is just the loudest. The squeaky wheel gets the grease.
The Japanese "the nail that stands up gets pounded down" works nicely there.
The tallest poppy.
Lots of cultures like this concept.
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Yes, because it is this one specific guy who is being prosecuted.
It's not this case, but the various public figures (including Biden) retaining classified information without being prosecuted demonstrates that's not true.
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I am punching him in the face but not anyone else, ergo, maybe he just has a punchable face?
If the postulate is that I plan to punch everyone in the face and also have 1000 fists so I can punch everyone in the face simultaneously, the fact that I am only punch one guy strongly calls into question whether or not I actually plan to punch everyone.
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Hillary faced calls for criminal consequences for her emails as secretary of state. Biden also inappropriately retained classified information and faced a criminal investigation.
But yeah, I'll bite the bullet, Trump is unusually shady.
Yeah. I mean he ordered the assassination of a fifteen year old in a cafe. Oh wait no that was Obama.
Oh well Trump must have tortured a lot of people. No wait that was W.
Well Trump must have sicced his DOJ on parents for exercising their constitutional rights with respect to school boards. No that was Joe.
No one else has done anything comparable to January 6th
Yes they’ve done worse (as the things described above). But here are some more:
Incarcerate a whole group of Americans based on their race.
Illegally engage in war (eg Libya).
Set up the whole fake Russia gate scandal.
Lie about WMDs to start a war.
Arguably Iran Contra.
Warrantless spying on all Americans.
I appreciate the thoroughness and earnestness of your list of stuff that presidents have done that you disapprove of, but none of those is worse than trying to overpower a presidential election after the fact with procedural trickery.
Anyway, come on. Trump is a shady guy. He always has been. Trump University was indefensible, and that's par for the course for him.
My point isn’t that Trump isn’t shady. My point is that most presidents are shady.
And I think you are way off. If you think, for example, the President unilaterally illegally prosecuting a war (usurping a key power of congress with not even a fig leaf of congressional approval) with the far reaching impacts war can have is at least not in the same neighborhood as trying but failing to use hokey legal arguments to stay in power then I just don’t trust your judgement. Ditto with incarcerating thousands of Americans for the crime of being Japanese. Ditto conspiring with the IC to actively undermine free and fair elections in the US (that one HAS to be in the same ballpark — it is about illegally obtaining the presidency albeit more subtlety but with more success). The idea that Trump was unique just elevates current fixation on J6 over a broader historical perspective.
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Actually, both sides of politics got involved trying to do this in Florida in 2000.
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More or less shady that multiple forcible rapes, and burning multiple dozens of men, women and children alive for a PR stunt?
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Trump probably doesn't get immunity for his acts on January 6th under this decision. Unfortunately for the prosecution, since those acts consist of Tweets containing clearly protected speech, which do not urge violence, that's going to be tough to pass Constitutional muster for other reasons.
As for whether anyone has done anything comparable, I'd be very surprised if no President has urged on a rally by supporters. Whether any has told them to go home after the rally turned to a riot, I don't know.
This is a ridiculous way to describe January 6
"Insurrection" is a ridiculous way to describe J6. "Riot" is probably the most accurate, but it evokes massive BLM-style destruction, so I can understand going for something milder.
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Why? What specific elements justify stronger language?
The special status applied to J6 was cemented with deliberate lies about the violence committed by the protestors. We know now that they did not, in fact, kill police officers, or anyone for that matter. We know that there was a complete failure of preparation and policing on the part of the government, which made crowd control completely ineffective. We can be pretty sure that there were many plainclothes government agents and informants in the crowd, encouraging others to break the law. We know that the police, lacking manpower, began waving the crowds through, and then that security forces shot an unarmed woman when the crowd tried to enter the chambers themselves.
We know that the protestors brought no guns, even though they could have. We know that they generally did not bring other weapons, despite lies to the contrary. We know they engaged in no serious violence, no serious destruction of property, nor even serious looting, despite complete failure to control the crowd. We know that protesters interrupting congressional deliberations is not some unprecedented event, and in fact Blue protesters have done it repeatedly in the past. We know protesters breaking into secure areas to confront and harass congressional officials is not some unprecedented act; blue protesters have done it before, and without being shot in response.
What's the actual argument?
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I am not describing January 6 that way. I am describing Trump's speech starting at 11am that way. The riot had not yet started; it started during the speech but Trump didn't know about it, since he was at the Ellipse, not the Capitol. The breach of the Capitol building wasn't until 2pm.
He did, several times. From the Newsweek timeline.
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Comparable to Trump's (lack of) action on that day? His watching TV and idly complaining that his supporters looked slovenly?
I am mostly referring to his procedural attempt to overturn the election by having Pence refuse to certify the results. But yeah. Refusing to issue any kind of statement asking his supporters to stand down while they invaded the capitol was also indefensible.
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If January 6, 2021 was the day Trump's second term was confirmed and had leftists behaved identically to the red hats, people here wouldn't even bring it up, because they'd have no reason to bring it up, because there's nothing unusual about leftists interrupting political processes.
Statements like this reinforce the grand hoax. There was nothing unusual about the day, its only unique quality was the right engaging in a particularly visible protest. It wasn't transgressive, the left behaves far worse far more often; it wasn't a threat, they would have brought guns.
Last week the country and world saw Joseph Biden is the de jure but not de facto President of the United States. The party that has branded itself on "democracy" shows no felt obligation to clarify to their base the man they voted for is not the actual Executive. It goes without saying they will lie about anything and the significance of 1/6/2021 is one such lie. Sadly it's not their worst.
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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.
Although I agree with you, an alternate “bad end” had the potential to happen during the armed FBI raid on Mar A Lago. If President Trump had been shot, President Biden would not be prosecutable as the raid ostensibly fell under item one. An impeachment for a high crime would have been the only recourse other than Civil War II, and there’s little doubt its fate in the Senate would have been short.
That is not a bad-end of the court opinion. That's what can already, and could already, occur.
Arguing against a Supreme Court opinion on the grounds that a tyrannical person will ignore it with sufficient congressional support is an infinitely generalizable argument- it's no longer a failure state of the actual opinion in question, but a failure of the broader system in who two branches of Government are colluding against the third.
Note that if you remove the presumption of capitulation, Congressional investigation by the opposition can still choose to dig in and find illegalities in the basis of action, which re-reverts item one to 'nope, outside of official scope,' or find evidence of resistance to oversight (such as, say, actual resistance to oversight), which is itself outside of the bounds of item one, or the other ways for additional information to be raised for public awareness. Will it un-assassinate a political rival? No. But would item one provide immunity? Also no, not unless there is sufficient coordination/agreement between the Branches of government such that the offense wouldn't have been prosecuted/pursued regardless.
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That's correct, and I think no one thinks Joe Biden would have been prosecuted for any deaths which occurred during the raid on Mar a Lago. This decision just says the same courtesy applies to Republicans also.
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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.
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I think Papal Infalibility is deliberately misunderstood to construct bad faith attacks on Catholics, just like how this supreme court ruling is being deliberately misinterpreted by the proles to construct bad faith attacks against Republicans. Of course, the problem is that the answer/debunking takes longer and is much less vitriolic than the hyperbolic misinterpretation, so the misinterpretation becomes what is public consensus, even if the law, and the ruling, is clear that this is not the case.
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What you're describing would result in the end of the Democratic Party as a viable political institution. Carrying out a purge while not doing anything to lock in your power after the fact is entirely backwards. The stain of having murdered so many top officials in such a public way would never wash out, the Democrats would never win another election, and the demands of the First-Past-the-Post voting system would mean that anyone in the party who has any political aspirations whatsoever (so, all of them) would have to denounce the party and quit to form a new one.
The end result would be the rise of a new party, maybe called the Liberal Party or the Reform Party or something like that. However, since anyone with name recognition would also be irreversibly connected to the infamous killing spree of the 2020's, the Republicans would probably win the next 5 or so elections while the new party builds up new leadership.
That's assuming that the Army, CIA, and FBI all manage to restrain themselves from carrying out a coup d'état, which, in the face of the backlash from the aforementioned infamous killing spree, would probably have overwhelming popular support.
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If we're positing the level of complete totalitarian control such that the military - a good chunk of which will have voted for or otherwise sympathized with the other party - to assassinate political rivals and expect to be obeyed, why would you expect the Justice Department, a much smaller and more politicized branch than the military which also serves at the pleasure of the President, to be able or willing to do anything to stop it?
I don't think anyone expects the DoJ to prevent something like this contemporaneously but now there is not even the possibility of punishment after the fact.
Ah yes, because legitimate prosecutions of totally-real crimes are what an opposing-party DOJ will prosecute and indict a hated former-POTUS for...I've got a bridge in Brooklyn to sell you. Also also, the Founders almost certainly didn't intend this because they knew their classical history, and knew that exactly this kind of post-office lawfare was a primary spur to the rise of Caesar and the Principate over the Republic.
That's why it took 200+ years for any president to be criminally indicted. Obviously without absolute criminal immunity presidents and ex-presidents would be awash in criminal prosecutions! That's why it has been such a problem historically!
Right, because people still knew their history enough that the idea of trying that kind of hardball was beyond the pale. It certainly wasn't for lack of things to try and arrest Presidents over.
Yeah. The idea that Trump is somehow unique as opposed to the person with respect to whom the seal was broken seems absurd to me.
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Indeed, it crossed the Rubicon, so to speak
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Obama sleeps peaceful tonight. He of course murdered citizens without due process.
I'd give him a pass on that. It's actually demonstrating a problem with birthright citizenship.
That problem is not recognized in any other context, so why should it be recognized in this one?
Because we are not allowed to say what everybody thinks, that some people shouldn't be given citizenship, and even when they have that citizenship they still aren't one of our own, so fuck them.
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Doesn't he only need the loyalty of a few people in the military? Why would the whole military have to be in on it?
You need the chain of command of the unit to do the actual striking, plus whatever logistics, signals, transport, and support tail is needed to get the strike package to the target, etc. As I understand it, almost nothing happens in the modern U.S. military with "just a few people."
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A President up to no good could simply pardon himself for all crimes anyway. So that a President could get away with this is now overdetermined.
The reprieve for this is clearly stated in the constitution and it's impeachment (and why that's a political process with little to no judicial oversight). And failing that, revolution.
Yes and this ruling doesn’t change that.
In short, the Seal Team Six fantasies are really complaining about forum. The appropriate forum is impeachment.
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Technically the states could still charge him.
If he was clever he'd do it in D.C. But this decision said nothing about state crimes (because the question was not in front of the court), so even with it, the states can still charge him.
There's an easier path to extend this ruling to states (it pretty much has to be extended under its own logic for vertical separation of power reasons) than to extend the Presidential pardon power to state crimes.
True, but it hasn't happened yet. (And the New York case won't do it, because that was clearly non-official acts, even though some of them occurred during his term of office)
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I'm not too concerned about the military implications.
On the other hand: Did Trump v. United States legalize bribing the President?
If the President has absolute immunity for discussions and actions relating to his constitutional prerogative, and bribery requires demonstrating a state of mind, typically through evidence that shows intent to bribe or be bribed, how would the Justice system examine such evidence if the President pinky-swears that it's legitimate, and is therefore subject to absolute immunity?
Congress could impeach.
This is susceptible to last-day shenanigans - if Congress can't impeach you fast enough, do you get away with it?
That probably already happens with pardons. See Bill Clinton.
There is a discussion of whether there can be a post presidency impeachment. I see why not if doing so is a necessary step to remove the immunity.
The flip side is with the right venue shopping the opponents can easily make cases against the prior president. That seems like a bigger problem compared to obvious corruption.
I think the easy ruling should’ve been “when president is acting qua president he cannot be sanctioned until impeached and convicted.” The impeachment process is the closest thing to a true jury of peers.
The outcome of an impeachment is, at worst, removal from office. Nothing about impeachment appears to grant anyone authority to strip absolute immunity conferred to actions taken pursuant to constitutionally granted powers of the President while the President was President.
ETA:
I'd read that as allowing subsequent prosecution, but not somehow removing absolute immunity from actions taken while still the President. If not, you could plausibly impeach and try every president immediately after they leave office, or whenever an opposing party gets a majority in the Senate, for crimes even intended to be obviated by the president's official powers. In which case, why grant immunity at all?
I think the idea would be that if Congress determines those actions were high crimes and misdemeanors, then they were ultra vires and therefore not entitled to immunity.
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Let me respond to your edit.
I don’t think the structure of the sentence suggest a separate unrelated offense. The first part of the clause tells us that impeachment and conviction goes no further than removal from offense (ie there is no jail sentence). We then told however that if the law brings the president up on charges he now could be subject to a jail sentence. The natural read to me is they are talking about the same offense (ie what would be the relevance of a future crime). No I think this is to head of discussions that the first crime was already adjudicated.
The constitution requires if memory serves 2/3 of the senate (ie super majority). It would be pretty much impossible to have a conviction absent bipartisan support whereas with the right venue the ex president could be subject to criminal liability purely by his partisan opponents.
The constitution clearly delineates between "Law" and "Impeachment", and the two are unrelated. I see the word "nevertheless" here meaning "this clause is about impeachment, not about the method of criminally prosecuting the president in spite of their absolute immunity", rather than "but if you remove them from office, you can now also do this other stuff".
I could be wrong, and if so I think you make a compelling argument for what right looks like.
Edit: See The_Nybbler's point here.
I agree there is a delineation. But given that no where does the constitution mention absolute immunity, it seems like a reasonable way to square the circle here given that ultimately this is a question of separation of powers.
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This is why presidents issue the bulk of their pardons on their last day in office.
Moreover, if the president does something heinous on the last day of his administration, what's stopping the next president from ordering the DOJ to prosecute and investigate? What's stopping Congress from issuing a subpoena and hauling the last guy in? What's stopping a federal prosecutor from opening a case and bringing charges? This is all baked in. All this ruling means is that, in the ensuing legal battle, your last-day president gets to argue that what he did was an official act.
Nothing, they just can't build a case if it depends on evidence precluded by simple absolute immunity.
The aforementioned simple absolute immunity.
Aside from bribery cases being guaranteed to fail in the absence of evidence of mental state, nothing.
For bribery specifically, you must prove the President's mental state of knowingly taking a bribe. The majority ruling explicitly forbids the courts from considering the President's mental state when determining if actions taken under the powers granted by the constitution are improper. And the president talking to his executive officers is explicitly a power granted by the constitution. So if the President says he wasn't taking a bribe, he was just talking with his officers... End of story, this crime cannot be prosecuted because evidence to the contrary is subject to absolute immunity, and is required for conviction.
What good does it do to prosecute a case if, by definition, you are guaranteed to fail?
At this point, the President would have invoked executive privilege, and Congress would have launched an impeachment inquiry, or campaigned on doing so.
But again, this does nothing. There's no declarative requirement for the President to e.g. invoke executive privilege. The President has absolute immunity for seeking opinions from his officers, it's not something he has to argue, he just says he was seeking an opinion and that's the end of the discussion; you can't subpoena parties or submit records of the conversation as evidence, and without that, you have no evidence of bribery. And as far as I can tell, impeachment (even after leaving office, which is out on a limb at best) doesn't strip absolute immunity. There is no legal battle, because the required evidence to prove a crime or any circumstances under which immunity wouldn't apply, impeachment or otherwise, cannot be considered by the court.
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No. The briber would still be prosecutable. And the President could be prosecuted for taking the bribe. Under the majority's decision, the prosecution could not use any official acts that the President took as a result of being bribed as evidence, which would make the quid-pro-quo difficult to prove; this is what Barrett had a problem with. I think she was right on the law but wrong on the stability of the nation; the majority's rationale was that prosecutors would use anything short of such a prohibition as a way to do an indirect prosecution of official acts, and I believe they are correct. At least if the President is someone they particularly want to go after for political reasons.
I realize now that I should have been saying de facto legalize. Yes, bribery is still illegal, and it can still be prosecuted, but it's very hard to go anywhere with that prosecution if the President can declare the initial act of discussing a bribe as part of his authority to seek opinions from his officers, thus rendering it subject to simple absolute immunity, and preclude the court from considering it (including for the briber, for what it's worth). Barrett's objection concerns the quid-pro-quo evidence created by the President after agreeing to a bribe; my concern is with the impossibility of demonstrating the President's (or his briber's) mental state, a necessary prerequisite for a bribery prosecution, when the court is explicitly disallowed to consider it.
The President cannot declare the act of discussing the bribe with the person bribing him as an official act. Unless he's being bribed by one of his officers in the course of seeking opinions from them. President: "Hey, should I pardon this guy? Secretary of Agriculture: "If you do, I'll give you this nice painting of a cow I got on my last trip home".
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What happened yesterday if the President ordered a hit? The local deputy sheriff straddles up to the White House and places the President under arrest? District attorneys all over the country and New York and Hawaii bring suit?
Come on, if the President ordered a hit today, it would not result in everything shrugging and throwing up their hands and saying, sorry, he's the President, whattaya-gonna-do-eyyyy?
The process is the same: Congress either opens an impeachment inquiry or appoints a special council grand jury to investigate and charge the president, and everything works its way through the courts.
The precedent set with Ford pardoning Nixon certainly implies that in previous decades, a former President could be charged with crimes arising from conduct while they were in office.
The pardon, of course, mooted the question, but the answer from the 1970s was (seemingly) "you impeach him, and after he's out of office he can be prosecuted like anyone else".
Importantly, Nixon was never charged with anything, so we don't know exactly what the pardon was intended to subvert -- but the underlying crime of the Watergate break-in was related to Nixon's reelection campaign, and reelection campaigns are not official duties of the president but are separated by statutes (isn't that correct?) that draw a clear-ish line between presidential duties and campaign activities. So isn't it likely that if Nixon had been charged, it would've been related to his political campaign -- using presidential powers in the service of his campaign? -- which would be categorically outside of his enumerated presidential duties.
Nixon's actions were not really those of a candidate for office. By all accounts he did not know about and was not involved in the actual break in. Any actions he would have been charged for were squarely within the court's grant of immunity today. Most likely obstruction of justice for attempting to interfere in the DoJ's investigation of the break-in, including by firing several high level officials.
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I'm not sure this works. The opinion doesn't make a distinction based on duties, it makes a distinction based on the function. That is to say "using presidential powers" is squarely inside what is protected.
Somewhat counterintuitive in a way -- if a President breaks the law in his capacity a regular citizen, he is not immune. But he is immune if he not only breaks the law but does so via the exercise of any of his core presidential powers.
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This case would not have immunized Nixon with respect to actions directly related to watergate (assuming Nixon was involved).
I think impeachment and conviction remove any immunity this decision confers though I admit I haven’t read the case closely yet.
Definitely not on 2
Why do you say definitely not?
The court goes to some lengths to say that impeachment and conviction are a separate process with no bearing on criminal prosecution. I think it would have been a possible reasonable thing to say that impeachment and conviction remove immunity for the acts involved, but Roberts says "no".
It did so to say that the impeachment provision did not create the sole forum for prosecuting a president. That is, the impeachment provision precludes a stronger form of the immunity. Roberts therefore could be perfectly consistent to say impeachment and conviction further removes immunity without undermining the logic of his opinion.
Given that this whole thing is judicially crafted (taking into account the structure of the constitution) I think you’d have some votes to say impeachment removes (ie you’d have presumably at least three and likely more).
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Because it's not anywhere in the decision that elements within the first 2 categories they laid out are somehow no longer eligible for immunity after an impeachment.
No it isn’t. But of course the decision doesn’t say the opposite either. I’m making a prediction based on reasonable arguments. This case isn’t a statute. It is much like a common law decision. So like a common law decision im saying change the facts and then think through “how should this change things based on what they said / their concerns.”
I believe impeachment and conviction obviates the concerns they have that led to granting immunity due to the super majority voting requirements for conviction. Thus I fully anticipate that the court would accept my position.
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If the only thing stopping POTUS from assassinating his political rivals is the threat that his own Attorney General is going to prosecute him for the crime, then we were already in a world where authoritarian dictatorship was inevitable. Any such POTUS that has consolidated enough political power to even consider such an option would clearly have a strong enough political ally as AG to not prosecute him.
In general, they say that coups aren't often the birth of a new distribution of power; they're the sudden realization (as in "being made real" not "people mentally realize") of what the distribution of power actually was already. Think Saddam Hussein publicly executing opposing members of parliament (there's a crazy video on youtube of that day if you have an odd curiosity to see how exactly these things can go down). It is wholly irrelevant whether or not a correct interpretation of Iraqi law made this a criminal offense. He had the power; he had the allies; anyone who could have plausibly prosecuted him for the offense was either already confirmed as an ally, already targeted, or at least wasn't stupid enough to have not gotten the message. The types of considerations that could actually constrain such a political actor's actions are just entirely different in type.
There are a variety of hypos that are within the domain of, "This is a possible problem that can arise in situations where everything is not already a lost cause and where having a different rule could actually make a difference," but this one isn't in that domain (it fails the first test).
I agree with your points that this does not really have a material impact right now. But the prevention of authoritarianism also relies on a broader culture of accountability and respect for democratic norms in addition to the legal framework. I worry this opinion negatively influences this culture. I imagine the slide towards authoritarianism to be “death by a thousand paper cuts” so-to-speak, and this is one of the paper cuts.
This is very plausible, though I think the traditional answer in the US is that the primary mechanism of accountability and respect for democratic norms is political, i.e., impeachment. There are tradeoffs in using political mechanisms vs. criminal law mechanisms, for sure. A complete discussion of those tradeoffs is probably even bigger than the 500000 character limit of a mottepost and would require significant engagement with an extremely large body of centuries worth of political theorizing. I don't think there is currently a singular tome in existence that is generally regarded as the 'bible' of this topic.
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Who’s “they”? I would like to read up on this idea, if you have any sources for it
I don't have a clean singular cite for that as sort of a solitary claim, sorry. Perhaps it's even something that I'm somewhat wrong about, but it's my impression from reading a variety of things over time about factional struggles for political power via means of raw power, consolidation of authoritarian power from opposition, things like the "rules for dictators", and all sorts of little pieces of work about why different sorts of governments came to be historically (things like whether a society is agrarian and what types of crops are dominant) and what the different end goals are of different uses of raw military power are and such (e.g., do you want to directly take control of governance, do you want to set up a puppet government, do you want to just displace people, etc.). These are unfortunately probably often treated separately in specialized academic works.
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This is the same Court that has been consistently expanding protections for firearm ownership pursuant to the Second Amendment so I expect liberals will, any day now, start finding a strange new appreciation for civilian ownership of 'weapons of war' if the President is free to kill U.S. citizens at will.
More seriously the consequences of not having immunity for 'official acts' would be arguably worse, with any given law enforcement agency that can claim proper jurisdiction able to show up to the White House with a warrant and seek to put the President in custody and/or search for evidence of criminal activity. Obvious failure mode there if we want him to be effective at his job (I, myself, wouldn't mind it! But as a practical matter who would agree to be President under these conditions?).
The line "When the President Does it, that means that it is not illegal" really does mean just that. If the laws carve out an exception for this particular person, then we can say in complete isolation from how immoral, illogical, and ill-advised an action may be, it is not illegal and thus remedies generally lie outside the legal process.
I think there's a middle ground in which such charges are put on hold while the President is actually in office.
Not that I'm actually endorsing that, but one can certainly imagine that consequences for wildly-illegal-official-acts (let's say Nixon ordered the FBI to do Watergate and they acquiesced) could and should come after the President leaves office (and presumably after his successor declines to pardon him).
And it would seem there the court would agree that the president would be liable for that criminally.
I don’t think so.
How would ordering the FBI to break into your opponent’s office to steal information to help your campaign fall within the official duties of the president? It certainly isn’t within the core duties so at best eligible only for a presumption of immunity. The court didn’t rule the president has absolute immunity. They basically stated there are concentric circles of immunity. In the circle where the president is clearly exercising core presidential functions in his capacity as president there is absolute immunity. In the next circle are the areas that the president might be able to claim are functions but are far away from the core function. Here it is a presumption of immunity. The final circle are acts taken while president but not acting qua president. Here there is no immunity. I struggle to see this hypo as in the first circle.
Directing the activity of the FBI is a core Presidential function.
I think that’s confusing an instrument with a function. The president does not have any function to spy on an opponent’s political campaign. So even though the president has the power to direct the FBI it would be used for an ultra vires purpose.
In contrast, if the president ordered the FBI to raid a political opponent because there was a legitimate legal purpose (eg they had credible evidence the opponent was taking a bribe) the function now is a core function and the president is immunized.
Of course, the courts would need to analyze whether certain acts were merely fig leafs but that happens today!
Even this is not certain, I think. As mentioned upthread, the FBI was created by Congress, thus directing the FBI is not an exclusive core function of the President under the US Constitution. That is to say, Congress has set the parameters within which the President must operate in regards to directing the FBI, so these powers of the president are limited or shared with another branch of government, so only presumptive immunity applies.
At least, this is how I imagine things would shake out in court if a President ever attempted such a thing.
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It is not. The FBI is not created by the Constitution; it is a creation of Congress. This puts directing its activity into that second category where immunity is presumed, not absolute.
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When this happened in 2016, the excuse given was that it was for reasons of national security. You just conjure up a foreign adversary with information you know is fake, use it to get a rubber-stamped warrant from the FISA court on some minor figure in the opponent's campaign and then use that justification to suck up all of your opponent's communications.
Yes. You can lie about it (see Obama admin). But the court need not accept your lie. Also no one faced serious punishment before this ruling so nothing really changed.
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I imagine there was at least one on the court who would think he should be immune (given that they declined to specify whether he had absolute immunity or presumptive immunity for official, non-core, acts), but overall the court would not be okay with it.
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The Court has done nothing except re-allow bump stocks. All its other firearm cases were dead on arrival, except Rahimi which was their burial.
Bruen was only 2 years ago and is already having initial ripple effects at the state level.
The "ripple effects" are that they're making carry permits that don't allow you to carry -- or at the very least turning the state into a minefield where if you're carrying with a permit you risk walking right into a felony at any time.
And striking down rules against pistol braces.
https://bearingarms.com/camedwards/2024/06/13/federal-judge-vacates-atf-rule-on-pistol-braces-n1225260
And bans on under-21's owning guns.
https://www.reuters.com/world/us/us-judge-strikes-down-federal-law-barring-handgun-sales-those-under-21-2023-05-12/
and at the county level, striking down magazine capacity bans.
https://www.king5.com/article/news/politics/state-politics/washington-high-capacity-magazine-ban-unconstitutional-cowlitz-county-judge/281-a6f257e4-8e37-47fe-971b-e775728b1e55
This is what I mean by 'ripple effects.' There is actual traction for going after restrictions on firearms use and ownership, with a new standard applied which is more favorable towards challenges, although it all needs to shake out over time.
I guess we'll see how the 'Spirit of Aloha' holds up in court, too.
If you don't see this as an 'expansion' of gun rights okay, but I'm not sure how you characterize it as making it more likely that people will catch a felony for owning or carrying a gun.
This will likely hold up because it's not on Second Amendment grounds.
Likely will be overturned by the Fourth Circuit, and the Supreme Court will not take up the case.
Likely will be overturned by the Ninth Circuit, and cert will be denied. A similar magazine ban keeps getting upheld in the Third Circuit.
In New York and New Jersey and California, if you could get a carry permit (which you probably couldn't), you could carry a gun in most places. Now, while theoretically you can get a permit, there's a long list of places and circumstances you can't carry anyway; educational facilities, health care facilities, any public building, various private buildings, Times Square, public transportation, private passenger transit, etc.
When I can walk into a New Jersey gun store, buy a modern rifle and pistol, load them, strap the pistol on my waist and the rifle on a sling, and head to my office in New York City without taking extreme care as to the route, using either public or private transportation to get there, without breaking laws that have not been overturned, THEN I will believe there's protections for firearm ownership and carry. Right now I can't lawfully buy the guns, if I could lawfully buy the guns they'd be restricted as to magazine capacity and by other features, I cannot lawfully carry the guns in NJ, I cannot lawfully carry the guns in NY, I cannot lawfully carry the guns on public transportation, and even if I could obtain a carry permit in both state (I cannot) I would still not be able to lawfully carry on public transportation and would have to take extreme care to avoid prohibited areas in NJ; I could not avoid prohibited areas in NYC.
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I'm not sure what exactly Rahimi entails. Gorsuch posed it as only saying that banning firearms, temporarily, from those judged, by a court, to be dangerous, is permissible.
The court in Rahimi accepted that laws against "going armed to the terror of the public" were historically significant. This translates into a blank check for any restriction on carry. Further, they accepted Rahimi, which walked back gun rights (not just by those judged by a court to be dangerous, but by those with a restraining order against them without any finding that they were dangerous), while ignoring many other cases where various courts have been ignoring Bruen.
Not quite. Bruen also recognized the same laws as historical precedents, but not for the law there in question. I don't have a good enough sense of how the court would continue to apply it more broadly, but I read Rahimi as mostly saying that "if you're dangerous, they can take your guns away." Which, will undoubtedly be attempted to be construed broadly, but Rahimi is clear (see page 15) that this is only allowing bans that show the individual in question a threat, unlike in Bruen, where they struck it down, because it presumed that they were lawful.
That is, it has to be default-legal to carry.
It is ruling only when a court decides that someone presents a threat. It's mentioned in the main opinion several times. For example, in the conclusion:
Section 922(g)(8), which the court upheld:
Note (8)(C)(ii), and note the "or" in (8)(C)(i). A court need merely order a person to not do something they're already prohibited from doing, without any finding they they represent a credible threat of any sort, and they lose their firearms rights. They didn't reach the constitutionality of (8)(C)(ii) in Rahimi, but they never will. The lower courts will take this decision as meaning the whole idea of "restraining order = lose firearms rights" is validated, and the Supreme Court will refuse to address the question again.
LOL, it isn't, not in New York or New Jersey certainly. If I strap a pistol on my hip and walk around my neighborhood, and a cop sees me, I'm going to prison with John Roberts's blessing. And despite there being ample cases to say that they really meant what they said in Bruen, the Supreme Court has taken none of them. The conservatives on the Supreme Court (except Thomas) do not want people to actually carry a gun; they support gun rights in the abstract as part of their high-class debating society, that's all.
Yeah, they definitely left up in the air whether it as a whole is fine. (Though Gorsuch, at least, seemed opposed.)
Fair enough, who knows whether they'll address it again. Why do you think they took Bruen, then, if you think they don't care? It's (mostly) the same justices?
They enjoyed the argument. It's not that they don't care; it's that they positively do not want the scenario I've been putting forth -- any unconvicted citizen being able to buy a gun, load it, and carry it into a major Blue city (they're probably mostly thinking Washington, D.C.) legally -- to happen. But they position they've taken in their high-class debate club is that the Second Amendment provides such a right.
Roberts, especially, is fond of decisions with no practical impact. Even with the recent decision striking down application of Sarbanes-Oxley to most Jan 6 protestors did nothing; the defendant in the case had enough other charges against him to put him away forever.
When Obergefell hit, people were getting gay married in every state in weeks if not days. The one resister in the entire country got fired and successfully sued for tens of thousands of dollars. It's been years since Bruen and it's still illegal for me to buy a gun or to carry one. Clearly the Supreme Court can make decisions which have effect; they just chose not to.
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I think that we will see a very concerted effort for the next several years to get a constitutional amendment clarifying that any elected official of the US is not immune from criminal prosecution whatsoever. Wouldn't surprise me if that initiative started even before Election Day.
Don't constitutional amendments require a two-thirds majority of the House, the Senate, and the States? In the current state of gridlock, I'd be shocked if the either party could get enough votes to pass a constitutional amendment banning elected representatives from eating babies while urinating on the flag on the 4th of July.
Oh yes, they will attempt to, but I don't think they will ever succeed.
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Well yes, one party would try to specifically exempt foods containing fetal remains from the ban, the other one would then say that this means unborn babies need legal protection and attempt to use it to ban abortion, and eventually everything would get stripped out into a meaningless amendment granting the president the power to recognize Fourth of July as a holiday, which would then fail to get through the house because it doesn’t require him to.
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The problem I have with this decision isn't the decision itself, but the fact that the average person now has to try and understand the complexity of the decision and rely on the (mostly biased) media to tell them how to think through it. I think too many Americans lack the ability to comprehend how nuanced and complicated our government is and will run with whatever headlines and one-liners they emotionally identify with.
I have yet to see an objective, plain-language, sixth-grade-reading-level breakdown of what all of this means from any media outlet.
The ruling is quite complex. Not sure there is a sixth grade concept. But it borrows pretty extensively from existing SCOTUS jurisprudence on presidential authority (eg the steel seizure cases). So I think there is learning one could look to but just like say anti trust is complex somethings aren’t amenable to sixth grade breakdowns.
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But it does also mean that the media circus has moved on from the debate. Why talk about Biden's declining health when the media is instead pushing declining democracy?
Volokh conspiracy generally has a good breakdown of stuff, but they're not a media outlet per se and they also take a day or two to write stuff up. Vox's deep dives became useless long ago. Nuance and readability does not get clicks.
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Others have done an exhaustive job of responding to your vibrant hypothetical. I'll just add that yes, you're right in general (regarding other fact patterns that aren't quite so dramatic) that there is some increased risk of presidents misbehaving if they are above the law, and there is a cost associated with that.
But there is also a cost associated with presidents facing criminal charges after they step down. Peaceful transfer of power is a remarkable thing that we shouldn't take for granted. You really don't ever want a president nearing the end of his term to have to decide between sacrificing himself to the criminal justice system or attempting an auto-coup. That is a much bigger risk, and cost, and the law should focus on mitigating that second risk over the first.
I am not, in principle, opposed to some level of presidential immunity but the court's decision today is insane. The President is a public servant and if they abuse their office to benefit themselves at the expense of the public, that conduct should not be immune to criminal prosecution. Instead the court today says intent is irrelevant for any official act and a whole bunch of official acts are just unreviewable as such. Some tin pot dictator drops a cool billion dollars in the President's bank account to get the US military to help him out? No bribery charges there! Maybe you get impeached but whatever, you got your billion dollars!
Given the fact of the way Presidents have historically acted and the absolute lack of criminal prosecutions until the latest one I am inclined to think the problem is that Presidents do not have enough culpability for their acts in office, not that they have too much.
It kind of seems like you're just making your rhetoric more aggressive without really responding to my comment.
I think my last paragraph is responsive? To be clear: I do not think Presidents having this level of immunity to criminal prosecution in office is necessary or desirable. I especially do not think it is necessary in order to have a peaceful transfer of power, given the ~200 years or so of peaceful transfers of power America has had without anything like this. I think the risk is much greater that Presidents abuse their office than that they face superfluous criminal charges.
Nobody tried charging an ex-President before. An ex-vice-president, yes, but not for acts in office. The last time it looked likely, Gerald Ford took care of the problem. I am sure the Supreme Court would rather have not taken this case -- you can put that squarely on the Biden Administration.
Just because someone charged one ex-President doesn't mean we can reliably predict what future practice will look like. To me, this looks like a legitimate slippery-slope fallacy. We have a clear and demonstrated history of Presidential abuse of authority, and up to n=1 history of legal harassment.
As mentioned in part of the oral arguments in the case, would you like to look up impeachment through history and how quickly political parties will play tit for tat?
Ok.
The first Presidential impeachment was of Andrew Johnson, a Democrat, in 1868. There was no subsequent retaliatory impeachment of his Republican successor, Ulysses S Grant.
The second Presidential impeachment was of Bill Clinton, a Democrat, in 1998. There was no subsequent retaliatory impeachment of his Republican successor, George W Bush.
The third and fourth Presidential impeachments were of Donald Trump, a Republican, in 2019 and 2021. There has so far been no subsequent retaliatory impeachment of his Democratic successor Joe Biden, and it does not appear that there will be.
What's your point again?
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He would only face that choice if he were protected from prosecution while in office, which he should not be.
He'd also face that choice if his own attorney general weren't inclined to prosecute him but the next one might be
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So then any DC prosecutor with a taste for power can try making his bones by filing grand jury indictments against the President. Even if they’re frivolous charges, the President’s staff and lawyers would have to respond, comply with subpoenas, etc. And considering the District of Columbia has such a liberal body politic, Republicans would stand no chance if the case proceeds to a jury trial.
The constant filing of trivial and/or frivolous ethics complaints is what drove Sarah Palin out of the Governor’s office in Alaska. The cost in time and money were a form of legalized harassment, a sort of Denial of Service attack on her ability to govern. Avoiding the same thing happening to the President should be a priority, given that his duties include things like wars, treaties, and emergencies in and outside the country.
Given that those were not criminal prosecutions with the risk of jail time, that is much closer to Jones vs Clinton (where SCOTUS ruled that lawfare against a sitting President was just fine) than United States vs Trump.
But once criminal prosecution and jail time are on the table for official acts allowed by the Constitution to the President, either in office or once he leaves, harassing lawfare gains teeth it didn’t have before. Hence immunity.
The public interest in preventing harassing lawfare against private citizens (including ex-Presidents) is a lot weaker than the public interest in preventing harassing lawfare against a sitting President.
If Obama had been brought up on criminal charges following his terms (let’s say serially for Benghazi, Gaddafi, and Operation Fast and Furious, off the top of my head), the public would absolutely care.
They’d be worked into riotous fervor by the media: “How dare they try to make the first Black President into a felon! This is a banana republic! Obama did nothing wrong! He was just doing his Constitutionally mandated duties, no matter how things turned out!” And so on, and so forth.
The “public” doesn’t care because the progressives want Trump to die in prison and the conservatives don’t have time in their workdays to go protest.
EDIT: I realize you said “public interest” as in the stakes the country has in each scenario. I disagree, because of the spectre of an end to the peaceful transfer of power, the very thing constantly hung around Donald Trump’s neck re Jan 6.
That’s not a very good analogy. What would be the charges?
I don’t believe Trump is being charged either for his foreign policy, or for his handling of law enforcement.
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What protects anyone else from frivolous charges?
Most people are not nationally important, and lawsuits are expensive.
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Why should I think that the second risk is greater than the first? Your post says that it is so, but provides no argument why that is the case.
Because the stakes are much higher
I don't see how. Can you explain?
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My first impression is that presidential immunity is bad, and it looks bad that the decision was made by justices that Trump appointed but, on the other hand, the democrats are, in my opinion, abusing the law to hurt Trump and his campaign. The alternate perspective is that every case levied against Trump so far was completely justifiable and rational, but I don't believe that. So I think any democrat complaining about this decision has no one but their party and their strategy for dealing with Trump to blame.
And the Court of Appeals for the D.C. Circuit. I think if they'd come up with a lesser version of Presidential immunity -- perhaps Barrett's, perhaps something with no absolute immunity at all -- the Supreme Court might have been tempted to just accept it. But they went for nothing, and that clearly wasn't going to stand. I think if it weren't for TDS, this would have been 9-0 for some form of immunity for official acts.
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1 - 3 seem relatively reasonable (though 2 is more deferential than I think is necessary). However, 4 is the big "What the hell?!" to me. It strikes me as a poison pill meant to make the whole thing nearly impossible to prove.
Say you think a President took a bribe for an ambassador. They could theoretically be prosecuted for that. However, any communication he might have had is pretty much immune from evidence-gathering. The Supreme Court also said you cannot put him on the stand and ask him under oath if he hired the guy because of the bribe.
I'm legitimately curious at how this is supposed to work, outside of said President being so stupid as to broadcast his crime on prime-time TV.
Does it even matter if he broadcasts his crime on prime-time TV? He could be there in his official capacity and thus the broadcast can’t be used as evidence for any wrongdoing.
The broadcast isn't the act though--it displays the act. If the act itself were to broadcast something, then maybe, but I'd still say that the act in that case would be the action of broadcasting, not the contents of the broadcast.
If he's being broadcast for a presidential speech and turns around and murders someone, then his act is the presidential speech, not the broadcast. People can still use the broadcast as evidence.
Ah you’re right. I was thinking along the lines of him admitting he’s done a crime on the broadcast, not that he literally commit the crime on the broadcast.
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I don't think an act becomes qualified as an "official presidential act" merely by the president appearing on TV, saying "I'm the president!," and committing a crime. There would have to be an argument that the crime was somehow necessary to the duties of his role.
Let's say one of a President's official duties is signing bills. While signing bills, his pen runs out of ink. The President then grabs his nearest aide, chops off the aide's hand, and signs the bill with the aide's bloody wrist stump.
The crime may have been committed during the execution of an official duty, but the crime is not necessary to the execution of the duty. Even assuming that another working pen could be not found without a run to Office Depot, the crime would still be egregious compared to the inconvenience of waiting for a new pen. This seems like an easily prosecutable crime because the infringed right of the aide outweighs the convenience of finding a writing utensil.
The same goes for the Seal Team Six scenario: Executing one's political opponents is not a necessary function of the president performing a duty. Whatever duty was being pursued surely has less-illegal remedies at the president's disposal.
But is there a carve out for things "not necessary to the execution of his duty?" I don't believe there is, since that seems to directly go against this recent court decision. The judiciary wouldn't get to decide whether a specific implementation is "unnecessary" or "too-illegal." The president gets a presumption of immunity for all of his official duties, however he chooses to discharge them. The alternative just makes the decision moot because any prosecutor can just claim that a specific action is a "too-illegal" remedy to get an indictment.
So, yes, under this decision, I believe that, since the president can direct our troops, he can order Seal Team Six to execute his political opponents. The ordering part is the official act, and is immune to prosecution.
The President's authority over Seal Team Six is that of the Commander-in-Chief. He can give them orders. It's pretty well-established that there are legal orders and illegal orders and which is which is decided by Congress.
In these areas, the Court says, he has a presumption of immunity, not absolute immunity. If the President gives Seal Team Six a blatantly illegal order like that one, and the prosecutors did a halfway-decent job, the courts would likely find the presumption was rebutted.
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Except what the lawful orders can be issued is not preclusive to the President, but the rules for the government and regulations for the armed forces established by Congress per Article 1, and thus not immune to prosecution by the standard of the court.
The President has no authority for issuing unlawful orders, and thus the immunity argument can only apply if ordering Seal Team Six to execute his political opponents is a lawful order in the framework already passed by Congress.
Upon further research, you're likely right. This fact was not apparent to me reading through the reporting and discussions of this court opinion on other social media.
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Okay, but let's say there is a weak argument that the crime was necessary to his duties. How do you disprove it? You would want evidence, but the bad argument also makes it an official act until proven otherwise, meaning you can't effectively investigate it.
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Hence Barrett's opinion.
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I don't understand what this means. Presumably, illegal acts are not part of the president's authority. So what do they have immunity from?
Fundamentally, the idea is that Congress does not have authority to regulate the constitutional exercises of the presidential office. The constitution is above any statute, so any statute which infringes upon the president’s ability to do his job is unconstitutional by that very fact (when applied to the president).
I'd add 'regulate the constitutional exercises of the presidential office that aren't shared with Congress.' There are Presidential authorities that are shared / overlap with Congress, and there are those that do not, and only the later are protected from Congressional regulation.
Which is kind of inherent in Congresses's own limitations of power- if it doesn't have the authority over something, it doesn't have the authority over. There's a reason the interstate commerce clause is so load-bearing to Congressional legislative authority, and even that has limits.
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How does prosecuting illegal acts done by the president interfere with his ability to do his job?
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This ruling is obviously correct. This is why impeachment and elections exist. If Biden ordered Trump whacked, the Democrats would face electoral ruin. If people continued to vote for Biden after… that’s democracy.
The flip side is that a small cabal in a monoculture forum can impose material costs on the other side.
The risk to me is far more on that side compared to the seal team six fantasies.
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Why stop there? Just order the guy after Trump whacked, then the next guy after that… Does it even matter if a large number of people refrain from voting Biden afterwards if he’s the only option left?
I think that after the first few murders Biden's own House and Senate Democrats would join with the Republicans and vote to impeach him. Whatever you think about the Democrats, most of them would be extremely uncomfortable living in a dictatorship ruled by fear and tyranny.
I think that's definitely true. But I also think that if someone were to become dictator, they wouldn't exercise power against their enemies quite so nakedly. Any dictator worth his salt is going to harp on how the people he killed were exceptional threats to the Republic, who undermine the foundations of our democracy, etc. And I think people (of either side) would eat it right up, given the current political climate.
There's a limit to how many people you can brand as enemies of the Republic. If you don't get rid of every single Republican candidate in every single competitive state then your supporters are going to lose their re-election campaigns in the face of the backlash from your massively unpopular campaign of state-sanctioned murder. Either you kill too many and your supporters turn on you for going too far or you don't kill enough and your supporters turn on you for fucking over their re-election campaigns.
There's a reason that the standard practice is to abolish free elections and purge political opponents simultaneously. If you don't do both at the same time then you get kicked out in short order. And I don't think this one Supreme Court ruling all by itself is enough to overthrow the whole American democracy.
Indeed there is. Robespierre found that limit. Unfortunately, it's much higher than zero.
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Laventriy Beria was murdered by Georgiy Zhukov.
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This hypothetical is completely asinine for so many reasons. If there was such a complete breakdown of order that one party was murdering everybody in the other party, a Supreme Court opinion wouldn’t matter in the slightest.
Regardless, suppose the Supreme Court ruled the other way. Why not, in addition to murdering the opposing candidate, just murder all of your enemies on the Supreme Court and Congress until the only people left rule that you are immune and refuse to impeach you? Loophole!
It’s such a bad faith argument. If Biden or Trump went on a murder spree, the Supreme Court would find some justification, thin or not, to rule it not an official act.
I don't understand. If a scenario of murdering multiple candidates is asinine then surely the scenario of Biden murdering Trump is also asinine and the Supreme Court opinion doesn't matter?
If there's a complete break down of order that Biden is able to murder Trump without any major repercussions except some electoral issues in November then he can also do it to two or three other politicians that step up after Trump. I just took your scenario and expanded on it. If you have problems with the "if he's the only option left" part, that is not meant to be taken literally. As in, he's not literally murdering everyone who disagrees with him, just that no one of value will have time to establish themselves to challenge his presidency after the first few are gone.
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I’m confused about the coup talk. Because the decision reads
Wouldn’t a coup attempt fall squarely in the non-core function of the President? The Government would then have a trivial time proving that its prosecution does not “pose dangers of intrusion on the authority and functions of the Executive Branch.” So the court would find that the coup attempt constitutes a punishable crime.
It depends on how you construe it. If the act the President is being prosecuted for is merely an official act where the President has some joint authority with Congress then plausibly that burden could be met. But if the burden is within the core of presidential authority (giving orders to the military?) then the immunity is absolute, not a rebuttable presumption.
Why the question mark? Is the order lawful, or isn't it?
The core of presidential authority over the military is not giving any sort of orders to the military. This is a conflation of the authority to command with the authority for a commander to act. The authority to command (to give orders) is distinct from the authority of a command to actually do X/Y/Z. The privileges of one do not imply the privileges of the other.
The Article II authority of the President to command the military is in the context of what Congress establishes the scope of via Article I. If it's not within the scope of what Congress establishes, it's not within the scope of Article II authorities either, because the scope of what the rules for the Government and the regulations of the military are get decided by Congress, not the President.
If the President's order is unlawful by the rules and regulations governing the military, it's outside his Article II authority to command the military and thus there is no immunity.
If the President's order is lawful, then it's immune from prosecution as a coup... but it's also not a coup by definition as a coup is an unlawful seizure of power, and for it to be a lawful order it has to be in compliance with the law.
Ah, that's an interesting fact about the President's armed forces command authority. I didn't realize that the authority wasn't actually as direct-delegated as I had thought. However, isn't it equally true that issues related to this Congress-President tension over the military have never made it to the Supreme Court and have instead mostly played out practically and politically? I know there was some drama over the Iraq-era AUMF but it didn't seem to have stopped the same kind of behavior even after repeal.
I can't speak to the specific history of attempts to take court cases against wars to the Supreme Court, but the distinction between authority to command authority to act is pretty old. It's a relatively common affair for when dealing with the American military internationally for humanitarian assistance / disaster relief efforts, because your American counterpart may have the presence and the means, but not the authority to actually help, except when they can do so for just a few days, before they have to cease and wait for broader authorities, and so on.
(This is actually pretty stereotypical in UN peacekeeper deployments in humanitarian contexts, actually- the authorities for doing anything more than self-defense are often so restricted that Commanders have no legal option but to not retaliate. This is how you get things like peacekeepers best known for just standing around and not stopping belligerents fighting around tehm.)
From what I remember, most of the drama over Iraq-era AUMF for the Americans to deploy to the United States hinged over the legal appeals, i.e. whether Congress needed to call it a war (Formalists), or if a UNSC resolution was required (Internationalists), or if this it was a derivative from the Gulf War 1 authorization and cease fire (since Saddam had by this point repeatedly violated the cease fire, if the previous authorizations were still valid). The AUMF directly references the later, as well as other basis for action, but the AUMF itself was what Bush relied on for the authorization to act.
I dug this up which seems to suggest that post-repeal Biden has resorted to more classic Article II defense for anti-Houthi actions instead of Iraq AUMFs, which is interesting. Previously, I think most drone strikes and similar actions were all authorized using various AUMFs in every post-Bush administration because they were deliberately written to be very broad. Maybe I have this wrong but I think Congress has repealed all but maybe one of the AUMFs?
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Was this justified along notionally originalist grounds? I know the role of president was a democratic palette-swapping out of the king to some extent, but sovereign immunity is easier to write off when those who enjoy it are alienated from actual political power/legitimacy.
Yes, on multiple axis.
The main originalist theme is that the Founders established some powers for the President, and not the Legislature, and so the Legislature or Courts don't have a Constitutional basis of restraining authorities that the President is constitutionally granted. I.E. the Constitution gives the President the power of pardon, originalist writing supports this sort of consideration, the Constitution doesn't give Congress or the Courts a role in executing or limiting it, and thus the current conclusion is that the Congress or Judiciary can't make it a crime to execute the Constitutional power of the President as the original intention for it was. This is generally consistent with the originalist intents behind separation of powers, the empowered Presidency vis-a-vis the previous Articles of Confederation, and so on.
The current forum discussions are more dominated by discussion over the military, but that's because of general conflation of two distinct authorities between the authority to Command (the President's Article II authority), and the authority to establish the rules and regulations of what may be commanded (Congress's Article I authority). And then trying to superimpose the absolute immunity argument on that overlapping sphere when the Court says absolute immunity doesn't apply to the overlapping spheres.
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I think the court wants to avoid the courts being used to prosecute the previous President whenever a new President is elected. Many parts of the executive and the judiciary enjoy some form of immunity from the law when carrying out their duties. If you treated the executive purely as normal citizens I think government would become non-functional. I suspect maybe Libertarians would advocate for this but I don't think it would have mainstream support. For example if the executive enforces a law that is latter found to be unconstitutional but has arrested people for violating the law if we treated the executive as normal citizens then surely the executive should face justice for false imprisonment.
There is an absolute abundance of situations that are just in that category of "government official does something, courts later rule it unconstitutional (or even just not statutorily supported)" that would completely change the dynamics of how government operates if those officials are then subject to criminal penalties. You can go to the blockbusters like NSA/CIA with intelligence stuff or the detention/rendition/interrogation stuff, but even just stuff like DAPA, student loan forgiveness, the non-appropriated disbursements of funds to health insurance companies, et cetera all the way down the line.
Frankly, this dovetails pretty nicely with all the stuff about Chevron, too. Like, not the actual issue in Chevron about how deference should work, but there are tons of administrative state hypos, where I can't imagine the people who are pro-Chevron are going to accept the possibility of criminal prosecution. If the head of an agency approves an action that is later determined by the courts to be unconstitutional or not supported by statute (which was even possible under Chevron if the statute wasn't ambiguous or the agency interpretation was far out enough), are all those folks going to be clamoring for them to be subject to criminal penalties? Say, the head of OSHA can be criminally prosecuted for the COVID vaccine mandate? Examples are plentiful, almost certainly at every agency in existence.
The result would be that all government actors would have to be extremely hyper-cautious about everything they do, more extremely than most people can probably even imagine. Like you say, a few Libertarians would be cool with making them have to be extremely hyper-cautious (because it gets closer to a world where they do literally nothing), but almost no one else is. Even judges have absolute immunity for their official acts, for much the same reason. There was basically zero chance going into this case that the Court was going to find that the President has zero immunity whatsoever for absolutely all official acts; the only real questions were how much immunity (absolute, qualified, some other construct?) and where the lines were drawn. Official v. nonofficial was one obvious place to draw at least one line, and the three-part division they settled on is perhaps not perfect, but it's at least in the right ballpark. It's definitely approximately along the lines of what I was expecting going in.
Great point there.
People who have recently come to support Chevron deference should be happy with a precedent that holds that Executive Branch actors are generally safe from prosecution for actions they take in their official capacity, even if found to be illegal/unconstitutional later.
If the Court had done the 'opposite,' that is, left Chevron in place but decided that immunity just wasn't a thing for the President and his appointees, then the new front that would potentially open up would be states seeking to sue and arrest, personally, the heads of various agencies for actions taken against their citizens. Okay, that could run afoul of the Supremacy Clause in most cases, but once those people leave office then they would have to be consistently concerned that they'd be brought in to answer for some order they gave during their tenure.
Hell, there's no reason why DOJ couldn't prosecute the officials for taking ultra vires action under color of federal authority itself, without relying on the states at all. Seems like a great way for a new president to get around civil service protections and clean house.
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I don't think you can retroactively prosecute anyone for something that wasn't a crime at the time they committed it, right? I can't pass a law today making posting on The Motte illegal and then charge you for posting yesterday.
Also, in this decision reversing Chevron, don't they explicitly say something like "This doesn't make all previous decisions that relied on Chevron reversible." At least there should be some general protection against these kinds of cascades of retroactive illegality.
Further, I would add that I don't think anyone could argue that -- generally -- an admin agency acting under Chevron was committing crimes by interpreting the laws as directed; rather they were operating under an error and without malice.
Many many agency actions are found to simply be not legal under existing law. You'll always have a variety of background laws that can easily be appealed to as the existing statute saying that it's illegal. @benmmurphy gave the example of false imprisonment. Could use things like misappropriation of government funds, etc. There are tons of existing examples, on the books right now, that could be used.
Right, but this is getting into the weeds of Chevron and is really beside the point. I'd say it's basically just not relevant.
Many many times, being in error or not having malice is not a defense. But you know what you're really doing here? You're reinventing qualified immunity. Kinda funny, really. Like I said, there was always going to be some form of immunity; the question was always where the bounds were on that immunity.
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Yes.
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As a libertarian I would happily settle for "courts find thing unconstitutional, government officials make minor or no changes continue doing it, they go to jail".
Right now it just seems like officials get to play a game where if they lose in court they get a stern warning, and they can seemingly keep getting stern warnings forever, the only escalation might be that some people suing them start getting settlements paid with taxpayer dollars. The official in question might get fired, but only if they aren't part of a public sector union (why do we allow those again?)
For this specific case, I'm not really a fan of going after publicly elected officials. And you don't really have to in order to maintain rule of law. If Biden orders a seal team six hit on a rival and you can guarantee that everyone except Biden in that chain of command will be sent to jail or executed for carrying out the order then you can make sure the order is never carried out. My vague and bad understanding of military orders is that is mostly how things already work.
How can you make sure of that when Biden also has the pardon power?
Presidents can't pardon state crimes such as murder.
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I’m missing something here.
Can impeachment impose any penalties other than removal and barring from office? Because it looks like the President can’t be normally prosecuted even if he gets impeached.
Say the President uses his Constitutionally-required State of the Union to advocate rebellion. Nothing as innocent as Trump’s 1/6 remarks—I mean explicitly telling Americans to take up arms against the rightful government. Congress, understandably annoyed, impeaches and convicts. Then what?
Under this decision, the ex-President keeps absolute immunity for the speech, which was discharging his official duty.
I don’t think the case addresses this and there are arguments that impeachment and conviction could remove the immunity (my theory is that would mean the conduct was ultra vires and therefore not entitled to immunity).
Justice Sotomayor, at least, thinks the majority opinion precludes this
I believe she is correct, though the "presumptive" immunity likely would not be a problem, since in a case where the President was successfully impeached and convicted, the presumption could likely be overcome. The absolute immunity would be a problem.
Sotomayor gets many things wrong including in this opinion so I think that is strong evidence for my position!
Sotomayor is far from the best legal mind, but she's not a reverse weather vane.
It was a joke to be clear. But it reminds me of Roberts’ line in the Harvard case which was something like “the dissent is not a good place to find legal advice on how to comply with the majority opinion.”
Damn, that’s a pretty good one.
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But impeachment isn’t a ruling on authority. It’s a political process for throwing someone out of office. You’d need an article of impeachment which explicitly made it ultra vires; that definitely hasn’t been a feature of previous impeachments.
What statement by Congress could rule that the President’s SotU wasn’t really discharging his Constitutional obligation?
The point is that congress needs to find that there was a high crime or misdemeanor. If the president was exercising his core constitutional powers, the only way it would make sense to me is if the end was ultra vires.
So what part of a rebellious SotU would be ultra vires? II.3 is quite vague.
There are lots of ways to abuse the lawfully granted powers of an office. Nepotistic or corrupt appointments—protected by II.2. Trading state secrets? As long as he does it on an official phone call, it’s protected. Collaborating with an invading army? He’s commander-in-chief, don’t tell him how to do his job.
All of these things would be crimes by anyone else. Some of them would be outright treason, which is one of the unambiguous criteria for removal. But under this ruling, the man with the most power to commit such crimes can’t face normal consequences. He can only lose his office.
Isn’t that excessive?
The protection against nepotistic appointments is consent of the Senate, as RFK could tell you. That's not new. Accepting money or favors in exchange for appointment could be illegal, although the strictures this decision puts on evidence would make prosecution difficult.
The President's position as classification authority makes this already true for all but some technical nuclear secrets.
Congress can "tell him how to do his job", but only through impeachment, not by accusing him of a crime. Dealing with the enemy in wartime is certainly a responsibility of the head of state.
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Impeachment is a political question, not a legal question. That is why it's handled by congress. The Supreme Court has already ruled on this. Congress is so sole authority that decides questions of impeachment. No judge can overrule them.
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Even without Presidential immunity, it is an interesting question whether the speech would be protected by the Speech and Debate clause. The Speech and Debate clause is written to only protect Representatives and Senators, but given that it has penumbras and emanations that protect members' and committee staffers, it seems like it could reasonably be extended to protect the President giving the SOTU.
If the speech was protected by the S&D clause, the President could still be impeached for it (because that is a proceeding in Congress) but not prosecuted (even after impeachment, because S&D protection can't be waived).
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Then nothing. The President's State of the Union remarks are protected absolutely. But note if he pulled out a Tommy gun and started mowing down the legislature, this would not be an official act, even though it occurred in the course of one.
Isn’t that perverse?
Anti-corruption laws add penalties because merely losing trust doesn’t outweigh the benefits of abusing an office. The Presidency is more powerful than any other office. Why should the penalties for abusing it be more limited?
I’ve got nothing against requiring impeachment as a hedge against misguided or malicious prosecution. The Court is correct to defend the President from such chilling effects. But getting impeached and convicted ought to strip those protections.
I would guess the Roberts court went as far as it did because they have in front of them what they see as a misguided and malicious prosecution. Presidents who abuse their office for personal benefit have not historically been considered a problem (they may have done it, but they haven't been prosecuted for it), and a President literally calling for armed revolution in the State of the Union address likely wasn't even on the radar.
But as for impeachment, I think the majority of the court considers impeachment to be a political process and wants a nice solid separation between it and judicial processes. Thus, they rule that impeachment simply has no bearing on immunity. Ruling that impeachment and conviction would strip immunity for the acts impeached for would break down that separation, and furthermore would have no bearing on the case in front of them (since Trump was not convicted)
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Did you mean that to display differently than it did?
Yeah. https://github.com/themotte/rDrama/issues/266#issuecomment-2203941882
It’s supposed to be a table where the intersection of “Authority” and “Impeached” is “???”.
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I think it's important to note that heads of state, being at the apex of accomplishment in the field of politics, are subject to different incentives as the average person.
For the most part, once you've reached that point, what more can you reasonably expect out of life? You already are garanteed to be able to have most of the earthly possessions you might reasonably desire, even if you did not abuse your position for personal gain, because of the inherent value of your importance and popularity, you can make millions trivially by letting a ghostwriter write a book for you, or by making a few corporate event appearances. Most of us scramble to try to make something significant out of our brief time on earth. Becoming President is significant. If I managed to do it, did what I believe to be a good job, yet after my term my opponents came to jail me, fuck it I'd off myself and go into the afterlife smiling knowing that I won at life and they can't take that away from me.
All that to say that the regular carrot and stick that keep us mere mortals from misbehaving are not really needed for them, because what's supposed to keep them honest is legacy. When you become head of state, you become someone who will be written in history books and known about centuries, quite possibly even millenias, into the future. Trying to play whack-a-mole with the million different ways a head of state could abuse his power is useless, just make sure, since you have the luxury to select them, that the people who get there are the kind who care that their entry in future encyclopedias read more like Marcus Aurelius' than Commodus'.
I propose a more likely alternative:
This is a "the moment Caesar is out of office we're prosecuting him" situation. He'll get the big brained idea to never leave office.
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Isn't the primary duty of the office of the President to protect and uphold the Constitution of the United States? If so, wouldn't that make any Presidential action that violates the Constitution -- without an explicitly granted exception -- either fall outside of or be in severe conflict with their Presidential duties? It seems to me that any Presidential act that deliberately violates the due process (5th Amendment) of an American citizen (like assassination) would be very easy to argue falls outside the President's powers and is therefore not covered by this immunity clause.
I'm having trouble thinking of the types of crimes this theory of immunity would cover, other than process crimes. Certainly it wouldn't seem to cover any the more sensational crimes that have been used in examples of how horrible this decision is. What are some examples of crimes which a President may now commit freely?
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