As I have previously written, I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. However, I saw good-faith arguments on both sides of this case and the Court adopted a middle road on immunity — rejecting the extreme positions of both the Trump team and the lower court.
One of the most glaring moments in the address came when President Biden declared that “for all…for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”
That is not true.
The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
The Court has often adopted tiered approaches in balancing the powers of the branches. For example, in his famous concurrence to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson broke down the line of authority between Congress and the White House into three groups where the President is acting with express or implied authority from Congress; where Congress is silent (“the zone of twilight” area); and where the President is acting in defiance of Congress.
Here the Court separated cases into actions taken in core areas of executive authority, official actions taken outside those core areas, and unofficial actions. Actions deemed personal or unofficial are not protected under this ruling.
It is certainly true that the case affords considerable immunity, including for conversations with subordinates. However, this did not spring suddenly from the head Zeus. As Chief Justice John Roberts lays out in the majority opinion, there has long been robust protections afforded to presidents.
There are also a host of checks and balances on executive authority in our constitutional system. This includes judicial intervention to prevent violations of the law as well as impeachment for high crimes and misdemeanors.
President Biden’s hyper-ventilated response is crushingly ironic. He was vice president when President Barack Obama killed an American citizen without a trial or a charge. When former Attorney General Eric Holder announced the “kill list” policy (that included the right to kill any American citizen), he was met with applause, not condemnation.
The Obama-Biden administration then fought every effort by the family to sue the government. President Biden would have been outraged by any attempt of a Republican district attorney to charge him or President Obama with murder.
He would also be outraged by prosecutors pursuing criminal charges for the deaths associated with the deluge of undocumented persons over the Southern border.
In his address, President Biden also claimed that “the law would no longer” define “the limits of the presidency.”
That is also untrue. This case was remanded for the purpose of defining what of these functions would be deemed private as opposed to official. Even on official actions, former president Donald Trump could be prosecuted if the presumptive immunity is rebutted by prosecutors.
What was most glaring for many civil libertarians was President Biden’s portrayal of himself as a paragon of constitutional fealty. He declared that “I know I will respect the limits of the presidential powers as I have for the last three-and-a-half years.”
That was also untrue. President Biden has racked up an impressive array of losses in federal courts where he was found to have violated the constitution.
This includes rulings that his administration has exceeded his authority and engaged in racial discrimination in federal programs. Indeed, Biden has often displayed a cavalier attitude toward such violations.
For example, the Biden administration was found to have violated the Constitution in its imposition of a nationwide eviction moratorium through the Centers for Disease Control and Prevention (CDC). Biden admitted that his White House counsel and most legal experts told him the move was unconstitutional. But he ignored their advice and went with that of Harvard University Professor Laurence Tribe, the one person who would tell him what he wanted to hear. It was, of course, then quickly found to be unconstitutional.
Biden showed the same disregard over the unconstitutionality of his effort to unilaterally forgive roughly half a trillion dollars in student debt. Courts have already enjoined that effort as presumptively unconstitutional (though an appellate court in one of those cases relaxed aspects of the injunction).
The address was used to reinforce his “democracy is on the ballot” campaign theme. Pundits have repeated the mantra, claiming that if Biden is not elected, American democracy will perish.
While some of us have challenged these predictions, the other presidential candidates are missing a far more compelling argument going into this election. While democracy is not on the ballot this election, free speech is.
For many of us in the free speech community, President Biden has become the most anti-free speech president since John Adams. As discussed in my new book, “The Indispensable Right: Free Speech in an Age of Rage,” the Biden Administration has helped fund and maintain an unprecedented censorship system in the United States.
That record is hardly supportive for a president claiming to be the defender, if not the savior, of the Constitution.
“The finite is annihilated in the presence of the infinite, and becomes a pure nothing. So our spirit before God, so our justice before divine justice.” Blaise Pascal
There appears to be a great deal of frustration on the part of those who are hell bent to “Get” the former President. When the legal system does not suit their agenda, then they scream “Injustice!” I have lost count of how many law suits are in play. Most people stopped caring after the second “impeachment” and the plethora of abuse of our legal system in order to get him on something, anything.”
This is a classic case of the “Boy Who Cried Wolf.” If there is a crime against the former President of the United States that was legitimate, it would have been more effective to have waited until there was a legitimate abuse of power or an actual crime. However, in their irrational, blind rage, they have engaged in tortured groping, shopping for a crime to get their political enemy.
What is truth is that our current President is in a state of cognitive decline; he does not do much in the White House; his unelected staff make most of the decisions; his wife Jill Biden is in love with power and she is the most powerful person in the White House and panic is setting in. President Biden’s incompetence was unmasked during the debate and people cannot unsee what they saw. He is finished. He should have retired and enjoyed the money that his son Hunter and his brother James collected on his behalf (with plausible deniability) for political favors rendered to the highest bidder.
What he reads from the teleprompter will be disregarded as propaganda at this stage of the game. They are not his words. President Biden, like every one of us, will eventually stand in the presence of our Creator and each of us must give account of our actions.
Question for the conservative textualists here.
How can this not be viewed as an activist opinion, devoid of any textual basis in the Constitution?
If textualism is the North Star, how can this possibly be justified?
Nothing in the text suggests it is left to the discretion of the President to violate federal or constitutional commands and limitations. And nothing in the text precludes the executive branch from deciding whether to lawfully prosecute previous Presidential violations of the law in the federal courts.
The Impeachment and Impeachment Judgment Clauses likewise provide no immunity to Presidents and do not establish a condition precedent for prosecution. Indeed, the Impeachment Judgment Clause supports exactly the opposite conclusion, serving as a negation of any imagined double jeopardy constraints based on conviction by the Senate. In doing so it confirms that ordinary legal accountability against Presidents is the default legal regime that is not to be displaced regardless of the outcome of impeachment and trial.
Structural concerns and other provisions of the Constitution likewise do not support presidential immunity from federal criminal law. The mere delegation of power does not imply absolute discretion in its exercise, and other so-called structural arguments amount to little more than policy arguments regarding which courts are not the proper arbiters. And, where the Constitution intended immunity for elected officials, it said so explicitly and with built-in limitations, such as in the Speech and Debate Clause, providing specific, but certainly not absolute, immunity to Senators and Representatives. See below:
Article I, Section 6, Clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Please explain why you feel SCOTUS was activist in simply reconfirming that a president has official duties, for which he or she has immunity, as well as unofficial duties, which are not immune, and then kick it down to the lower court to determine which of the charges are deemed official duty or not.
Are you saying that Obama should have been tried for murder for killing a terrorist who was also an American via drone strike?
The remedy for high crimes and misdemeanors while in office is impeachment.
Killing political opponents or SCOTUS is not an official duty of any president, and therefore not immune from prosecution. In fact, directing the DOJ to prosecute Trump, his political opponent, and the FBI to conduct an armed raid of Mar-a-Lago to retrieve documents Trump had the power to declassify, were also not official duties, and, in my layperson’s opinion, should also be open to prosecution.
The Democrat Party has treated Republicans as their sin eaters. Trump is constantly prosecuted for what Biden, Clinton, Obama, and other Democrats have done, from weaponizing the government against political opponents to mishandling of classified data.
I’m not sure you are familiar with what judicial activism means. Judicial activism means judges using policy rather than the Constitution to justify their interpretation of law.
You did not reference a single provisions in the Constitution that supports the concept of presidential immunity.
Anonymous – Judges have absolute immunity. Prosecutors almost have absolute immunity. Police officers have a high level of immunity. Where is the Constitutional bases for those types of immunity? You fail to recognize that there is law outside the Constitution, and much of it is judge-made in order to apply to problems that arise in the operation of the political/legal system. If you like, it could be called Constitutional common law.
“. . . devoid of any textual basis in the Constitution?”
Your question is exactly backwards, turns the purpose of the Constitution on its head, and is based on a gross misunderstanding of immunity.
The Constitution grants certain powers and authorities, and *only* those, to the three branches. Immunity is not a power or authority. It is not a green light. It is a red light, announcing in effect: You cannot prosecute a particular person for this or that. You, government official, cannot take that action.
The proper question is: Where does the Constitution grant the Executive or Judicial branches the power to prosecute a president for actions taken within the “exclusive sphere of constitutional authority”?
Have you read the Opinion? Roberts justifies immunity based on the separation of powers among the three branches of government. By immunizing the presidency, Roberts limits what he views as overreach of the powers of Congress and the judiciary. Thus immunity absolutely is about power and authority. Literally the entire opinion is based on this concept.
Immunity is not simply a defense that the president can raise to prosecution of a crime (like self defense to murder). It is a literal carve out of the powers of the other two branches.
“Roberts justifies immunity based on the separation of powers among the three branches of government.”
I guess you answered your own question.
In other words ‘Biden lied’.
Again….
Biden must be confronted with the facts, that his Administration is not this clean pure paragon of virtuous adherence to the Constitution, but rather a formidable foe of it, as Turley has pointed out. When Biden gave a brief speech after his debate debacle, he claimed that he knew one thing for sure…….he knew what Truth is. Not so fast Joe. He’s a 50 year politician, which automatically puts him in the category of long time liar, comfortable with having a very loose relationship with the truth, and now as a doddering old man, his strings are being pulled by puppeteers who are largely telling Joe when he can speak, what he can say, and what their truth is…….Maybe the Pope should call for an audience with Joe — peace around the world is greatly at risk with this version of Joe Biden at the helm.
Citing Robert Jackson above, Jackson being a former Nuremberg prosecutor that prosecuted Nazis after World War Two – the top duty of the U.S. Supreme Court (Judicial Branch) is to provide “Judicial Review” over the two political branches (Congress & presidents).
The U.S. Supreme Court’s top duty is to “restrain” Congress and presidents if they violate the letter & spirit of any constitutional right or assume powers from another branch’s jurisdiction.
The big issue in 2024: there are at least 40,000 American citizens blacklisted since 9/11 (covert punishment without any constitutional due process, without any confrontation and without any remedies to be made whole again). Since the January 6 attack on the U.S. Capitol, this 40,000 estimate of blacklisted Americans estimate is likely inaccurate.
The real number in 2024 of blacklisted Americans could exceed 100,000 Americans blacklisted (destroyed or defamed for life) – never even confronted, never charged with any crime and punished for life. Real inmates convicted of real crimes, serving time in real prisons have more rights than these mostly innocent Americans.
The U.S. Supreme Court has essentially corrected faulty rulings like “Terry v. Ohio” 1968 with more recent rulings “Carpenter v. U.S.” and “U.S. v. Jones” to outlaw warrantless domestic spying by local, state and federal officials. The Executive Branch leaders (police chiefs, FBI Directors, DHS Director, etc) have totally ignored and continue to violate Carpenter and Jones.
The U.S. Supreme Court has still not made blacklisted Americans whole again or even issued a Writ of Mandamus to the two political branches.
Former Justice Robert Jackson (former prosecutor of Nazis) believed “warrantless arbitrary searches” were the greatest threat to any nation. Once any government allows bureaucrats to snoop into the legal private affairs of average citizens, abuse of authority will happen. The U.S. Supreme Court has largely abandoned blacklisted Americans for more than 20 years – abdication of their top duty as a court.
Trill alertvvvvvv
430 Comments!
That’s the difference a troll farm can make. Just constantly generating posts; most of which are mean-spirited. In fact, a substantial number of these posts are meant to intimidate other commenters.
MESSAGE FROM THE FARM
brandrunner says:
See below as Peter Shill, Floyds most prolific puppet, tries to deflect from his poor attempt at pretending to be a libtard.
Dont fall for it. Floyd is so desperate to disrupt the brilliant liberal commentary here, that he is pretending to make himself “furious”.
………………………
Brandrunner is currently one of the farm’s favorite puppets. Brandrunner is used when the message is pure malice. Floyd himself posted this message in a deliberate attempt to create as much confusion as possible.
Floyd knows the farm is losing control of this blog. So like a cornered rat, Floyd is lashing out. If he can’t control this blog, he’s going to ‘blow it up’!
For this reason Turley followers keep seeing exceptionally mean spirited posts targeting George, Dennis, Gigi, Peter Shill and Puppet Watch.
Puppet Watch has exposed the troll farm and named all the puppets. Which means years of work lay in tatters as long-established puppets are exposed.
So Floyd James Hullbobby Estovir is going to take the blog down with him. Because that’s what trolls do when the game is finally over.
Dude you are seriously eaten up with waters derangement syndrome.
Get some help. There has to be some loved one you can talk to.
Intimidate? Here, have a tissue.
What is your purpose or intent? Do you think pointing it out is going to make any difference? Your constant posts regarding it are not adding to the conversation, rather they are accomplishing the same thing.
^^^^^troll
I’ve got your new book hard copy – the jacket being advertised in back window dash. Ntl this all boils down to the ultimate core of the president “to preserve protect and defend” the constitution.’ And he tried too. His ability was often swatted down because lack of standing – or the notion of not enough widespread fraud to overturn. Ironically supreme court opinions on elections – one vote – got standing despite nit enough uninvestigated fraud to over turn – wherever that standard came from – the core duty per the presidents own oath is to ‘preserve protect and defend ” the constitution. We learned from the Colorado case – of a peoples right….all us all. Not just 6 upset Andersons in colorado. And given all the irregularities in 2020 – preserve protection and defend – was hard – bc Colorado case would be years later and his only ‘standing’ to preserve protect and defend came as a defense or counter claim. The supreme fell short – the core president duty – that he oaths to is to “preserve defend and protect’ the constitution of the United States. Yet he couldn’t but fir standing? That needs reconciled for sure. But the court doors were closed even before Jan 6th – just saying…the bed was made.
And the bed was made – most Felon’s from alabama go to Georgia for a dl – bc the can’t get one in alabama but need one for a job. So Georgia haw dl mills- with voters motor registration automatic. Where’d all those ballots spill? Maybe raph should find them – since the executive despite his motor votir doesn’t have standing – and it’s a crime to ask too apparemtky. Maybe trumps immune from asking?
Trump did an attempted coup, which is about as opposite of ‘preserve, protect and defend ” the constitution. SCOTUS gave him immunity for that.