For reference: Article 48 Wikipedia I’m trying to understand how anyone with any knowledge of the history of dictators could possibly justify granting a president unchecked “official” power so if anyone has any actual theories I am ALL ears.
The rationale is that the powers aren’t unchecked, but that the check for official constitutionally listed acts of the president is Congress, not the courts.
Article 48 gave the presidentisl office the power to unilaterally bypass the legislature.
This supreme Court ruling delineates the line between the individual and the office with regards to the judicial system, not the relationship between the office and the other branches like article 48 did.
Rather than granting new powers or preventing restraint of the executive branch, it purely limits the consequences the individual can face out of office.
The concept of presidential immunity existed prior to this case.The ruling essentially listed three categories and their immunity status with regards to the courts. In my opinion, two of them are reasonable and the third shouldn’t exist.
It’s reasonable to me to say you cannot sue the president for vetoing a bill, or criminally prosecute the president for commanding the military. The constitution says the president can do those things, and that the check on presidential power is congressional acts including impeachment. The office of the president or the government as a whole may be prosecuted, and Congress and the courts can hammer out the exact meaning of the core powers, but the individual is only liable if Congress uses their power to assert that something was definitely not a valid presidential act.
It’s reasonable to me to say that being the president doesn’t grant you broad immunity for non-president things. The president does not have the constitutional authority to drink and drive, so if they do they’re just a person subject to criminal prosecution.
It’s unreasonable to me to say that in areas where the president acts officially, but their authority is shared with Congress or an inherent power of the office that they might not have immunity depending on how it impacts the role of the president.
It’s weird to say it, but in this case I agree more with Coney Barrett that the more appropriate test is to see if the law applies to the official act and then determine if in this case it would interfere with a delineated core power.In her own separate concurrence, Justice Amy Coney Barrett agreed with the majority “that the Constitution prohibits Congress from criminalizing a President’s exercise” of his core constitutional powers and “closely related conduct.” But she would have courts approach the question of immunity for other official acts differently, by focusing first on whether the criminal law under which a former president is charged applies to his official acts and, if so, whether prosecuting the former president would interfere with his constitutional authority.
Applying that principle to the facts of this case, she suggested that at least some of the conduct that serves as the basis for the charges against Trump – such as his request that the speaker of the Arizona House of Representatives hold a special session about election fraud claims – would not be immune. “The President,” she concluded, “has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
https://www.scotusblog.com/2024/07/justices-rule-trump-has-some-immunity-from-prosecution/
I ultimately think that it would have been better to say that the president (individual) cannot be criminally prosecuted for exercising specifically enumerated constitutional powers unless Congress has impeached and removed from office and send it back to the lower court. They’re perfectly capable of deciding if a particular act was an executive overreach or not on a case by case basis, and the fact that this has never happened before is a pretty solid argument against needing to worry about a “chilling effect” on the exercise of presidential power. The president should be chilled, it’s practically in the constitution. Any power not given to the government is reserved to the people, clearly implying that the constitution should be read as stingy with power to the government, and generous with rights to the people. The president, as a member of the government, should be encouraged to worry about wandering around in legal grey areas.
It’s reasonable to me to say you cannot sue the president for vetoing a bill, or criminally prosecute the president for commanding the military. The constitution says the president can do those things, and that the check on presidential power is congressional acts including impeachment.
Yea I dunno … why not just have no immunity? It’s not like the whole idea of the separation of powers is to ensure power is freely exercised … it’s the opposite.
If a president has to pause for a moment before doing something to ask their lawyer if it would be a crime … maybe that’s the point of having fucking legal system and constitution?
Sotomayer’s dissent provided pretty good evidence (AFAICT) that the framers would have put criminal immunity into the constitution if they thought it wise … because it was a known idea at the time that had been done by some states regarding their governors. They didn’t. Cuz that’s the whole point … “no man is above the law”.
And as for Congressional impeachment being paramount … I’m not sure that’s either necessary or even consistent with the Constitution (again, as Sotomayer’s dissent addresses).
For example … Article 1, section 3 (emphasis mine):
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
In short (AFAICT) … impeachment and general legal liability are not the same thing … and the latter totally still applies.
Beyond all of that, the general law probably achieves everything that the majority’s decision was worried about (while they were conspicuously not worried about all of the other things that one should be when crowning a king). Civil immunity is a well established doctrine (government’s just too big and complex a thing for civil responsibility to make sense). And while I don’t know anything about it, there are similar-ish ideas around criminal responsibilities that just don’t make sense for the very nature of a governmental responsibility, war, I think, being a classic example. Sotomayer again speaks about these things.
Overall, once you start to squint at it, the whole decision is kinda weird. To elevate the separation of powers to the point of creating literal lawlessness seems like plain “not seeing the forest for the trees”.
The bit I wonder about, without knowing US Constitutional law/theory well at all … is whether a democratic factor has any bearing. A criminal law is created by the legislature, a democratic body. And also caries requirements for judgment by jury. So couldn’t an argument be made that the centrality of democratic power in the constitution cuts through any concerns about the separation of powers that the SCOTUS had, and enables democratically ordained law to quash concerns about whatever interference the judiciary (or legislature?) might exercise with the executive.
I know there’s the whole “it’s not a democracy, it’s a republic” thing … but the constitution dedicates so much text to establishing the mechanisms of democracy (including the means by which the constitution itself can be altered) that it seems ridiculous to conclude that democratic power is anything but central.
Those are all great points.
To be clear, I don’t agree with the notion that the president requires immunity in order to be “undistracted” while being president.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can’t do that thing is either unconstitutional, or doesn’t apply to the president.
If they’re impeached it wasn’t a valid use of their powers and they are potentially personally criminally liable.
I feel like it’s less traditional immunity and more an acknowledgement that the legislature can’t criminalize things in the constitution, and someone can’t be guilty of a crime under an unconstitutional law.It’s the not-enumerated official acts bit that’s wonky to me.
I don’t think anything that trump did would even remotely fit under an enumerated power of the president, which are pretty clearly and narrowly defined. Nowhere does the constitution empower the president to futz about with elections. If Congress delegated that power to the president, then the president is acting in the bounds of a law they can break.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can’t do that thing is either unconstitutional, or doesn’t apply to the president.
You are effectively implying this, but I will say it explicitly - you don’t need immunity to reconcile the logical conflict. The courts can simply find that that law is unconstitutional facially (if it is specifically directed at an enumerated executive power) or as-applied (if it is a general law that sweeps in executive conduct that falls under an enumerated power). In other words, it’s not that the President is immune from criminal prosecution for violating a criminal statute, but instead Congress violated the separation of powers when passing the law and it therefore can’t be enforced because it is unconstitutional. In that situation, this would be a defense to the prosecution, with the burden being on the President to raise and prove the unconstitutionality of the law just like any other defendant. We don’t need to invent a new immunity to protect the President against Legislative excesses.
I’d agree that that would also be a valid way of accomplishing the same thing. Given the history of how we’ve handled things like civil immunity for the presidency before, it’s at least consistent to call it an extension or clarification of existing practices, rather than something new.
Yeah, that’s fair - ‘new’ is probably not wholly accurate.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can’t do that thing is either unconstitutional, or doesn’t apply to the president.
Yea, it’s an interesting one. AFAIU, the delineated powers are basically command of the military and the power to pardon. I really don’t see how a Crime can generally be applicable to either of those. It’s not like “commanding the army” can just become a crime.
But regulating what the army can legally do … seems like a very natural thing. I don’t know if individuals of the military in the US can be responsible under ordinary law for anything. If so, then I don’t see why that would extend to the president should they order something that’s obviously a crime. If not, then that’s that. And again, there are probably natural exceptions to carve out regarding the very nature of military action that would lead to preposterous inconsistencies if they could possible be made generally criminal … where again, it seems to me that you don’t need immunity … it’s just the nature of the power that is amenable to falling within the meaning of legislative regulation.
Beyond all of that though … there’s the opening line of Article II:
The executive Power shall be vested in a President of the United States of America
WTF is “the executive power”?! I’m sure there have been attempts in the US to give it some shape … but I’d also wager it’s been left somewhat nebulous too, involving elements quite distinct from whatever powers Congress/Law can confer. Does that count as an enumerated power?
Otherwise … yea I’m with you. The “official acts” thing seems more than wonky to me … seems downright expansive. Excluding military action and whatever “fuzzy” powers may be considered intrinsic … I’d imagine most of the executive’s powers come from legislative laws. So the body conferring power can’t constrain it to “not doing something criminal”!!!
I’ve wondered since having a brief look at the decision that the SCOTUS is playing a game here … where they do not want Trump’s trials to affect the election and are hoping to clarify this decision and what “official” means at a later date after the election.
For the military thing, I think there’s coverage for that. The constitution gives Congress the authority to govern the conduct of the military, as well as when it may be used. The president’s “just” the commander, but they’re bound by the same rules for the military that Congress made. I think the best case a rogue president could make there would be that they should be court martialed rather that tried in a civilian court, and I’m unsure if that’s better.
Since Congress has authority over the conduct of the military, I can’t actually think of a situation where “being commander” was the defining thing, and not their conduct as commander. Closest I got was some sort of negligence resulting in death, but that’s derilection of duty and part of conduct.
I believe the executive power thing is essentially “control of the executive branch”. I think that one is actually fairly well fleshed out since it’s the leading source of disputes, since it’s all about what the president can tell a part of the executive branch to do.
It would essentially be “the president is not criminally liable for firing the attorney general”.So yeah, I think the sane conclusion would be that the president is de facto immune to laws that currently don’t exist, and likely never will that are insanely narrow in scope.
I unfortunately don’t think the court is playing a game.
I think their slow handling of the case was partly avoiding claims of the courts influencing the election, and partly it just being complicated and unprecedented.
I think they were very clear that the other acts are basically anything the president does “as president”, particularly since they ruled that it’s okay for the president to ask the justice department about options for replacing electors, because the president gets to talk to the justice department.I think it’s also worth reiterating that this doesn’t prevent the courts from preventing an action, or other checks against presidential actions, only the consequences the individual may face afterwards.
The president has the same authority to order the military to disband Congress as they did before, I just might be harder to sue them for it.Cheers!
Well…you made me feel one iota less justified in sending my dad a shirt with Bootlicker in large font.
I mean, if he’s even sorta a boot licker, that’s pretty awesome.
Hopefully that “lol, nice” makes up for that iota. :)
As a German, well, I don’t understand enough about the US side of things to answer to this, but I do always get spooked when I see nations pulling shit like that.
And, by the way, I do hope the USA finally get 9/11 under wraps this year: https://www.whitehouse.gov/briefing-room/presidential-actions/2023/09/07/notice-on-the-continuation-of-the-national-emergency-with-respect-to-certain-terrorist-attacks-3/
A broad coalition of the liberals, centrists, conservatives with the Nazis who were willing to outlaw and arrest a fifth of the government for the final vote to function.
As I understand it, POTUS has absolute immunity for core acts as specifically defined in the constitution. There are other official acts the president may conduct that are not strictly defined. There’s a presumed immunity for these actions but that does not mean they can not be challenged or that a president can not be impeached. And then there are actions a person holding office as president of the US may conduct outside their role as president which are by no means immune from criminal prosecution.
So, from what I’m reading, this ruling hasn’t really changed very much. It actually seems to me that it holds a president more accountable for their actions as it strengthens the guidelines they must follow as president.
Now, how congress goes about utilizing these guidelines in a bipartisan matter is 100% always going to be a concern. There’s going to be a lot of back and forth and forth and back to more clearly define what “official acts” are. Because our politics are so toxic now, this is likely going to have a monumental impact on the momentum of the already agonizingly slow to do anything federal government.
So, it’s up to voters to decide if they want Washington to work for them in a meaningful dinner table manner or perpetually act as a court to hold politicians accountable for their actions. We still, currently, have the choice to move forward or stay stuck in 2020.
In regard to the Reich Constitution, POTUS has always had most of these rights. In instances of political unrest or natural disaster, the president has power to declare an emergency. Funding still has to be agreed upon by Congress.
Also, FWIW, SCOTUS very clearly states in the middle of Page 8 “The President is not above the law.”
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.
The president’s power is still checked via judicial review and congressional impeachment.
Why should anyone believe either of those processes are possible anymore, now that the president has been granted the power to coerce members of both branches through threat of force?
These actions were already possible. Nothing has been granted that wasn’t already there, but now we know a president can’t be sued/charged for official acts after they leave office. And it appears the burden of proof is, as always, up to the prosecutors to prove. So, once again, the courts will have to establish precedence over what they consider to be official and unofficial.
Please. Of course any president could always do anything, and of course it’s always up to the prosecutor to make a case. Are you really claiming that the Supreme Court setting the precedent that presidents are exempt from criminal liability is not a change? Does the weight of that precedent not make prosecuting presidents vastly more difficult and, apparently, impossible in many important ways? Does that fact not make it much more likely that presidents will commit crimes? You may want that change, but there is no merit to the argument that this decision doesn’t change anything.
This looks new to me. It becomes hard for prosecutors to prove anything when we can’t ask about motives and the witnesses are ‘privileged advisors’. From the officical court opinion – note it is in paper-format with hyphens. (page 18: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf):
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.”
(page 31)
The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification pro- ceeding thus involve official conduct, and Trump is at least presump- tively immune from prosecution for such conduct.
This sounds like the status quo that existed before this ruling. Any president could plead the 5th to avoid answering questions about their motive.
No. You plead the 5th once you are in court. This says that when Nixon wanted the FBI to stop investigating the Watergate break-in, we couldn’t ask why because the prez is supposed to talk to the FBI and we can’t question his motives. It says that when Trump asked Pence to hold the vote and bring in fake electors, it was official communication and therefore legal – because we can’t ask why. It says that when Trump wanted false charges of fraud brought up for elections, saying his lawyers would figure out the reasons later, that was OK because he’s officially supposed to investigate fraud. Prior to this, any potential overlap between the Office of President and potential Candidate for Presidency (and/or candidate for future jail term) could be investigated as if it was not Presidential until there was a solid defense as to why it was official. The ruling turns that on its head and says prosecution must first find proof that actions were unofficial – and do so without the ability to ask about motivations – before filing charges. We want the official/unofficial decision to be made with the weight of context and done in court rather than putting prosecutors in the position of ‘illegally’ investigating a President before they can figure out what actually went down.
How very idealistic and nice of you.
I didn’t say it wasn’t a terrible situation. I truthfully answered the OPs question that it’s not Article 48 as there are still opportunities for review by the other branches of government.
