SCOTUS Burns Down Another Guardrail
Plus: The lesson from George Washington that Biden should take to heart.
That wild and crazy Supreme Court, saving the fireworks for the closing act of their term! We just hope they don’t get all their best ideas out too soon—when you’ve got two or three decades minimum of conservative majority ahead of you, it’s important to pace yourself. Happy Tuesday.
Entering Our Immunity Era
Back in 2019, Donald Trump famously declared that “I have an Article II where I have the right to do whatever I want as president.” Yesterday, the conservative majority on the Supreme Court said: Yeah, pretty much.
The ruling in Trump v. United States puts in place a brand-new tripartite test for presidential actions—total immunity for core constitutional functions of the presidency, presumed immunity for “official acts,” no immunity for non-official acts. It’s still possible, under this ruling, for presidents to commit crimes during their tenure—while they’re off the clock. But for acts done in their capacity as president, the bar to charge them now ranges from “ludicrously high” to “impossible.” Nobody is above the law, SCOTUS assures us—but some are apparently further above it than others.
On the site, Kim Wehle breaks down the Court’s decision:
In his majority opinion . . . Chief Justice John Roberts insisted that the normal checks and balances in place to stave off rogue prosecutors—such as affirmative defenses, motions to dismiss, and the practical difficulties of securing jury verdicts without actual evidence—aren’t good enough for former presidents. Prosecutors cannot be trusted to act in good faith, Roberts more or less concluded. So the “conservative” majority effectively injected a new provision into Article II of the Constitution that gives presidents a presumption of absolute immunity from prosecution for official acts, even if done corruptly or in violation of the criminal laws.
In her dissenting opinion, Justice Sonia Sotomayor summed it up this way: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”
How precisely the courts will apply that test to Trump’s plethora of still-pending legal proceedings remains to be seen. But the ruling is disruptive enough to blow up the old paradigm we used to talk about those cases.
Simply put: You can wave goodbye to any hopes you might have held onto that Trump will face timely accountability for attempting to steal the 2020 election, or actually stealing heaps of classified documents on his way out the door. Those cases are headed into the constitutional Twilight Zone for a long, long time.
The biggest legal questions surrounding Trump now concern his possible next round of lawless actions—how unshackled he will be, in short, should he win the presidency again in November.
But Trump isn’t the only actor here. This matters for President Joe Biden, too. His campaign clearly saw the ruling as an opportunity to clarify the stakes of the election—sending fundraising solicitations and warning of an unchecked Trump coming back to power.
Biden himself, facing intense questions about his capacity to run for office, held a rare evening press availability where he sounded the alarm in a short speech from the White House last night. “I know I will respect the limits of the presidential powers, as I have for three and a half years,” he said. “But any president, including Donald Trump, will now be free to ignore the law.”
As things stand now, there are still millions of people out there, conservative-leaning voters who don’t consider themselves Trump superfans, people who still find him personally off-putting, who plan to go to the polls in a few months to vote for him. Many will do so in part because of some comforting inchoate notion that the people and systems around him will still be able to hold some check over his wilder and more vengeful impulses while in office.
That thought has always been a fantasy to some degree. After this SCOTUS ruling, it’s a fossil. Trump is running for president to get vengeance on his foes, and the Court just greased the skids.
The most immediate question is whether Biden can effectively make this case. Count former Rep. Tim Ryan (D-Ohio) among the unconvinced.
—Andrew Egger
‘The Increasing Weight of Years’
Every February 22, the Senate observes George Washington’s birthday by selecting one of its members, each year from alternating parties, to read the first president’s September 1796 Farewell Address.
Joe Biden, who served in the Senate for 36 years, surely heard the address many times.
This week, in the privacy of the White House, Biden should read it again.
The document is famous for Washington’s advice to his countrymen—especially his warning that excessive partisanship can overwhelm patriotism.
But in his address, published September 19, 1796 in the American Daily Advertiser of Philadelphia, the advice follows an announcement.
That announcement was that President Washington had decided not to run for reelection. Indeed, the title given by the Daily Advertiser was “the Address of Gen. Washington to the people on His Declining the Presidency of the United States.”
The address begins:
The period for a new election of a citizen to administer the executive government of the United States being not far distant, and the time actually arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those out of whom a choice is to be made.
Washington continues by explaining his decision:
I beg you, at the same time, to do me the justice to be assured that this resolution has not been taken without a strict regard to all the considerations appertaining to the relation which binds a dutiful citizen to his country; and that in withdrawing the tender of service, which silence in my situation might imply, I am influenced by no diminution of zeal for your future interest, no deficiency of grateful respect for your past kindness, but am supported by a full conviction that the step is compatible with both . . .
Every day the increasing weight of years admonishes me more and more that the shade of retirement is as necessary to me as it will be welcome. Satisfied that if any circumstances have given peculiar value to my services, they were temporary, I have the consolation to believe that, while choice and prudence invite me to quit the political scene, patriotism does not forbid it.
President Biden should read these words. He should take them seriously, and reflect on their relevance to the current moment.
Indeed, he may wish to quote from these paragraphs if he announces his decision to step aside from the 2024 presidential contest.
There is no weakness in acknowledging “the increasing weight of years.” There is admirable strength in accepting the counsels of prudence and patriotism, and choosing to act accordingly.
—William Kristol
Catching up . . .
Supreme Court’s immunity ruling escalates long rise of presidential power: New York Times
Behind the curtain: Trump’s imperial presidency in waiting: Axios
‘We’ve all enabled the situation’: Dems turn on Biden’s inner sanctum post-debate: Politico
Biden team courts skittish Democrats as path to replace him narrows: Washington Post
Israeli generals, low on munitions, want a truce in Gaza: New York Times
The Supreme Court protects the future of content moderation: The Verge
Quick Hits
1. Family Matters
Whether President Biden remains on the 2024 ballot at this point is a decision that’s solely up to him—and to his family. On the site today, A.B. Stoddard writes of the uniquely painful and difficult situation Jill Biden now finds herself in:
By every account, the president’s wife is his closest adviser. She gets the last word in the significant debates about his future. She is not only unwavering, she is emphatic. The question now is whether she is letting that empathy and resolve get in the way of doing what’s right . . .
No one knows more about how profoundly Biden has aged in less than four years in the presidency than his wife. We have seen the concern in her face at events as she takes his hand to lead him in the right direction. Yet she is insistent that he carry on, even now that everything she reportedly worked so hard to shield has been exposed.
The Biden family is known for hunkering down through every difficult chapter. And they’ve had many—from illness to addiction, tragedy and loss. But this challenge is different, because this time they are carrying the fate of the nation with them.
2. Vibe check
The post-debate polls are starting to trickle in:
USA Today: “Republican Donald Trump has edged ahead of Democrat Joe Biden, 41% to 38%, in the aftermath of the candidates’ rancorous debate last week . . . That narrow advantage has opened since the previous survey in May showed the two contenders tied, 37% to 37%.”
Morning Consult: “While our post-debate survey shows President Joe Biden has lost no immediate ground to Trump, most voters, including a 47% plurality of Democrats, say Biden should be replaced as the Democratic candidate for president . . . Our latest survey, conducted Friday, found 45% of voters support Biden and 44% support Trump.”
CBS News: “For months before the first debate, the nation’s voters repeatedly expressed doubts over whether President Biden had the cognitive health enough to serve. Today, those doubts have grown even more: Now at nearly three-quarters of the electorate, and now including many within his own party. And today, after the debate with former President Trump, an increased number of voters, including many Democrats, don’t think Mr. Biden should be running for president at all. Nearly half his party doesn’t think he should now be the nominee.”
WMUR Manchester: “A new poll shows President Joe Biden trailing President Donald Trump among New Hampshire registered voters by two points . . . ‘I think it’s now conclusive that New Hampshire is really a competitive state in the presidential election,’ said Neil Levesque of the New Hampshire Institute of Politics. The results show a significant swing since the last Saint Anselm College poll in December, which showed Biden up by 10 percentage points.”
Nevada Independent: “A new poll of likely Nevada voters commissioned by the AARP finds former President Donald Trump with a 3-percentage-point lead over President Joe Biden. In a full ballot test including Robert F. Kennedy Jr. and other third-party candidates, Trump’s lead over Biden expands to 7 percentage points. And yet, like other polls this cycle, the AARP poll finds Sen. Jacky Rosen (D-NV) leading Republican Sam Brown, suggesting a significant amount of ticket-splitting. Rosen, who holds a 5-percentage-point lead over Brown, significantly outperforms Biden with independents and young voters.”
Cheap Shots
A lot of people are commenting on how the SCOTUS ruling expands presidential power, and it does, but I haven't seen as much commentary on how this and the Chevron ruling expand the courts powers.
The SCOTUS has basically constructed for itself a veto over any action the executive branch can take. While they can't be proactive, they have essentially positioned themselves as a filter, able to rubber stamp any conservative initiative they desire and stop any liberal or left-wing one they dislike.
This is why people were warning everyone that the court had become illegitimate for years before this happened. It was clear that this is what the federalist society wanted from the start. Since courts are not elected, they've essentially created a node of conservative power completely immune to the will of the people.
The Biden question is secondary at this point to the Trump/Supremes question. If Biden steps down we get Harris. If Biden falls down we get Harris. If Trump wins we lose our freedom. That should be the focus of every newsletter and editorial. This court has gone way beyond being extremist. They are so arrogant and corrupt that they feel they can totally disregard the most basic texts of the Constitution. The six crazies want to give all the power to their billionaire backers. Trump is just their lunatic dancing bear. Biden may be aging in place, but Trump has become a deranged serial killer. If he is elected he will use his power to destroy everyone and everything that bothers him, and this court will back him every time. We are already entering the age of Stalin in the US. Many of us who write things critical of Trump and the court on this forum will be in danger of prosecution. That's what presidents can do.