Could President Joe Biden, as Justice Sonia Sotomayor claimed in her dissenting opinion from the Supreme Court, order “the Navy’s SEAL Team 6 to assassinate a political rival”?
The old Scrantonian might claim, in one of his lucid moments, that that Republican feller was a danger to the Constitution and that, as commander in chief, he had a duty to defend American democracy by turning Mar-a-Lago into talcum powder. If he did, would he be immune from prosecution on grounds that he had acted within his core presidential powers?
Chief Justice John Roberts dismissed the suggestion as “fear mongering on the basis of extreme hypotheticals,” but he did not attempt to explain where Sotomayor’s logic was flawed. As far as I can see, liberal and conservative lawyers agree that, taken at face value, the Supreme Court’s decision would indeed allow for domestic assassinations.
Presidents and former presidents are freer to commit crimes than they were a month ago. The Supreme Court was not stating a precept that was previously implicit. Yes, a case can be made that, in certain circumstances, presidents enjoy qualified immunity. But this ruling extends that principle beyond any possible reading of the Constitution or of precedent. As Quin Hillyer put it in these pages, the decision “is a departure from text, original public meaning, and crucial historical referents.”
I have an almost religious regard for the U.S. Constitution. I never visit my cousins in Philadelphia without making my hajj to the old courthouse and pausing in reverence at the miracle that was enacted there. Of all the arguments for backing Trump, the one I found most valid was that he would appoint judges who ruled on the basis of what the Constitution said rather than of what they wanted it to say.
Now, that argument has collapsed. The idea that presidents have always been free to break the law, that the Founders intended to give them that right, is impossible to stand up.
The United States was created because its progenitors had had enough of the concentration of power in an overmighty executive. They wanted authority divided, dispersed, and democratized. Most of them understood this principle, not as an innovation, but as a restatement of the rights they believed they had been born with as Englishmen.
The idea that kings were above the law had twice been rejected in England. First when Charles I was tried and executed, and second, when James II was declared no longer to be king. James was deemed unfit for office precisely because he had subverted the laws to push his peculiar idea of monarchy. The 1689 Bill of Rights, drawn up after the most stubborn and foolish of kings had been deposed, made the principle explicit:
“The pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal”. Every one of the Founders was intimately aware of England’s Bill of Rights. The idea that they intended to give the American president powers of immunity beyond those enjoyed by a Stuart monarch is too silly for words. On the contrary, the Constitution lays down that the president’s first task is to “take Care that the Laws be faithfully executed.”
It is hard to avoid the conclusion that we are seeing precisely the kind of politicized judgment that conservatives, including me, have always railed against. When the case of Richard Nixon and his tapes came before the Supreme Court, every justice, including the three whom Nixon himself had appointed, ruled against him, reaffirming the principle that no one is above the law. This time, the court split wholly along partisan lines, six conservatives (or 5 1/2 if we count Justice Amy Coney Barrett’s partial assent) versus three liberals.
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Can everyone not see what is wrong with this? The body that is supposed to be the ultimate referee is now divided by team colors. And the team that used to claim that there should be no teams, that the law should be interpreted strictly and literally, has shown itself to be every bit as partial as the other lot.
In order to make life easier for a convicted criminal, the Supreme Court has had to go to extraordinary lengths, preemptively excusing any future mobster who uses his immunity to auction off public offices or settle private scores. And most Republican voters, although they answer differently when the question is put in generic terms, support the ruling as it applies to Trump. God help America.
