Senate Majority Leader Chuck Schumer (D., N.Y.) has introduced the “No Kings Act” with great fanfare and the support of most of his Democratic colleagues. Liberal groups have heralded the measure to legislatively reverse the ruling in Trump v. United States. It is obviously popular with the press and pundits. It is also entirely unconstitutional in my view. The “No Kings Act” is not just a cynical abdication of responsibility by Democrats, but would constitute the virtual decapitation of the Constitution.
I have previously written about the false claims made about the Supreme Court’s decision by President Joe Biden, Vice President Kamala Harris and other leading democrats. The press and pundits have reached a new level of sensationalism and hysteria in the coverage with MSNBC’s Rachel Maddow even claiming that it was a “death squad ruling.”
The Trump Decision
The Court actually rejected the most extreme positions of both the Trump team and the lower courts.
As it has in the past, the Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the court adopted a similar sliding scale. It held that presidents enjoy 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.
Where the coverage has been wildly inaccurate, the No Kings Act is cynically dishonest.
To his credit, President Joe Biden was at least honest in proposing a constitutional amendment to overturn the decision in Trump. However, that was dead on arrival in Congress since under Article V it would require a two-thirds majority vote in both houses and then ratification by three-fourths of the states.
The Democrats are seeking to circumvent that process with simple majority votes with the No Kings Act.
The bill is being presented as a jurisdiction-stripping measure, not an effort to dictate outcomes.
Congress does have authority to change the jurisdiction of the federal courts. That authority was recognized by the Court itself in Ex parte McCardle (1869). Chief Justice Salmon Chase ruled that it did have the authority “to make exceptions to the appellate jurisdiction of this court.”
However, Chase also emphasized that the law did “not affect the jurisdiction which was previously exercised” so that prior decisions would remain fully enforceable.
Moreover, shortly after McCardle, the Court ruled in United States v. Klein (1871), that Congress may not use its authority of court jurisdiction to lay out a “rule of decision” for the Supreme Court, or effectively dictate results in court cases.
The No Kings Act
The No Kings Act does more than just strip jurisdiction and makes no secret of its purpose in dictating the outcome of future cases.
It purports in Section 2 to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress.”
That is a rather Orwellian view of “clarification” since it directly contradicts the opinion in declaring in the very next section that “[a] President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress.”
Schumer and most of the Democratic senators actually believe that they can simply instruct lower courts to ignore a Supreme Court ruling on the meaning of the Constitution. It would undermine the basis of Marbury v. Madison after 221 years.
To be sure, it is stated in strictly jurisdictional terms. Yet, it crafts the jurisdictional changes to mirror the decision and future immunity claims.
The bill declares that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.”
But the Democrats are not done yet. Section 4 actually removes the Supreme Court from such questions and makes appellate courts the effective highest courts of the land when it comes to presidential immunity:
“The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President.”
Notably, this is one of the wacky ideas put forward by the President’s Supreme Court Commission. After all, why pack the Court if you can just gut it?
Of course, some sponsors like Elizabeth Warren (D., Mass.) want to both pack the Court and strip it of authority. Presumably, once packed, the authority to act as a court would be at least restored with the liberal majority.
By making the D.C. Circuit (where most of these cases are likely to be litigated) the highest court of the land on the question, the Democrats are engaging in the rawest form of forum shopping. The D.C. Circuit is expected to remain in the control of Democratic appointees for years. (The Act expressly makes the D.C. courts the only place to bring a civil action in this area and states that “a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.”)
The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.
But wait there is more.
The No Kings Act reads like a fairy tale read by Democratic senators to their grandchildren at night. Not only would the evil conservative justices be vanquished by a lower court controlled by Democratic appointees, but the bill is filled with other wish list items from the far left. It would strip the Court of the ability to take other cases, to dismiss a criminal proceeding, to suppress evidence, and to grant a writ of habeas corpus, or “the Great Writ” that is the foundation of Anglo-American law for centuries.
The Democrats even legislatively dictate that any review of the law must meet a standard of its choosing. They dictate that “[a] court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.” Thus, even the clear and convincing provision of the Act must be subject to a clear and convincing evidence review.
The Death of Marbury?
Again, Democrats are insisting that they are merely changing the jurisdiction of the Court and not ordering outcomes. However, the sponsors make clear that this is meant to “reaffirm that the President is not immune to legal accountability.” Sponsors like Sen. Sheldon Whitehouse (D., R.I.) declared that “Congress has the power to undo the damage of this decision” by a “captured Court.”
The greatest irony is that the Democrats are practically reverting to the position of critics of Marbury v. Madison, who argued that the Framers never intended the Supreme Court to be the final arbiter of what the law means. That principle has been the touchstone of American law since 1803, but the Democrats would now effectively revert to the English approach under the guise of jurisdiction stripping legislation. Before the Revolution, the Parliament could dictate what the law meant on such cases, overriding the courts. On a practical level, the Democrats would regress to that pre-Marbury approach.
Marbury introduced a critical stabilizing element in our system that contributed greatly to the oldest and most successful constitutional system in history. Democrats would now toss much of that aside in a spasm of partisan anger. Calling the No Kings Act a jurisdiction stripping bill does not conceal its intent or its implications for our system.
It is all a rather curious position for the party that claims to be defending the rule of law. The No Kings Act would constitute a radical change in our constitutional system to allow popular justice to be meted out through legislative fiat.
Sponsors like Sen. Jeanne Shaheen, D-N.H., previously promised a “revolution” if the conservatives did not rule as the Democrats demanded. They have now fulfilled those threats, though few expected that they would undo the work following our own Revolution.
Just to be sure that the sponsorship of this infamous legislation is not soon forgotten, here are the senators willing to adopt this Constitution-destroying measure:
Chuck Schumer (D-NY), Mazie Hirono (D-HI), Brian Schatz (D-HI), Ben Ray Luján (D-NM), Jack Reed (D-RI), Richard Blumenthal (D-CT), Tom Carper (D-DE), Peter Welch (D-VT), John Hickenlooper (D-CO), Bob Casey (D-PA), Chris Coons (D-DE), Jeanne Shaheen (D-NH), Tammy Baldwin (D-WI), Jeff Merkley (D-OR), Ben Cardin (D-MD), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Patty Murray (D-WA), Chris Van Hollen (D-MD), Ed Markey (D-MA), Tammy Duckworth (D-IL), Amy Klobuchar (D-MN), Laphonza Butler (D-CA), Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Ron Wyden (D-OR), Angus King (I-ME), Martin Heinrich (D-NM), Debbie Stabenow (D-MI), Alex Padilla (D-CA), Gary Peters (D-MI), and Raphael Warnock (D-GA).
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).
A sensible Supreme Court would have simply said that crimes committed by the President to gain advantage for self, or sympathetic partisans in winning elections are prosecutable — and then essentially echo Roberts’ protections against politically-motivated indictments in Trump v. U.S.
But it didn’t. By failing to rope off campaigning and post-election-mischief as unofficial duties, Roberts has given a greenlight for Presidents to violate the Hatch Act, and give cover to Exec. Branch officials asked to violate it.
Of course, such a reasonable, common-sense correction is beyond the ability of Democrats like Schumer to grasp.
A balanced, partisan-neutral perspective is needed for that.
The squad has lost it’s second member, Bush.
Democrats are revealing who they are and who they’ve been since the 1960s – the Communist Party USA.
How in the hell does preventing the president from having immunity have anything to do with communism? MAGAs are just brain dead.
The ability to act alone and not communally with other elected officials for the people?
Because the commies are the only ones that want it
Now Republicans are commies? They are the ones who wanted presidential immunity.
This legislation is not intended to be passed. It is intended to intimidate the judiciary, esp. the six non-leftist justices.
The political philosopher, Hobbes, emphasized the role of fear in controlling our lives. He said that people form politicial institutions (“the Sovereign”) to protect themselves from harm, and that “the Sovereign” then uses fear to keep the populace in line. Our Democrats understand this concept even if they have never read Hobbes.
“Section 4 actually removes the Supreme Court from such questions . . .” (JT)
According to the D’s, the Supreme Court is supremish.
The separation of powers thwarts the D’s lust for power, and its manic desire to “get Trump.” So their solution is to gut our system of government, and to make the judiciary an appendage of congress.
Our economy is bad, buying a home difficult, gas prices to high, weak military, war threatening and dare I say Border. Someone remind these people they have been elected to represent US citizens not political actions to advance their party and yes term limits are needed Mr. Schumer for you and your colleagues not SC.
The picture colors are shining through.
I had the pleasure of visiting with a (soon to be ) 90 year old. She was a Senate secretary years ago and is sharp as a tack. She said that she is disgusted with the current conduct of the Senate in general and specifically named a number of the female squad members and Nancy Pelosi and called them “common.”
The form and decorum has gone out the door. It has descended (at least with some members) to the level of Roller Derby, Monster Truck rallies and Jerry Springer.
I agree with her. It is disgusting.
True colors
When the communists tell you and then show you who they are, believe them. Schumer is following Lenin’s and his Bolsheviks planned takeover of the provisional government to establish a communist government with dictatorial powers reserved to the communist apparatchik. The 34 co-sponsors see themselves as that ruling power and are willing to destroy the republic to obtain it. Attempts to neuter SCOTUS in order to gain that power is evident and must be soundly rejected by the masses. Each co-sponsor must be called out in their district repeatedly until they are ousted and replaced by men and women of character and integrity who are willing to fight to save our republic.
It should be remembered that Tsar Nicholas abdicated in March 1917 and the provisional government only lasted 6 months until Lenin and the communists took power in October 1917. That’s how long it took to lose a budding democracy and since we’re pretty far down the path leading to revolution it won’t take any longer than that.
This is disgraceful for democrats. And i just don’t get it! We have to retain one of the chambers this coming election or they will force this through 🤦♀️
Disgraceful for democrats?
How about in Idaho where they passed a bill that protects parents when they rape their children. Don’t believe it? There is a law that requires parental consent for all medical procedures, including the use of a rape kit on a minor. A parent or step parent can rape their child, deny consent for a rape kit if the child were to report the rape, and the police cannot use the rape kit under threat of jail. Still doubtful? Roughly 1/3rd of rapes are committed by family members.
Republicans, the protect the family rapist party.
@Anonymi
You are a ridiculous person. 🙄🙄
I’m disgraceful because I think rapists should be held accountable? Even when it is a parent that commits the rape?
Who is disgraceful?
Roughly 95% of all rapes are committed by democrats and rape is illegal everywhere.
Sorry that Idaho doesn’t allow strangers to make medical decisions for your kids without your consent, maybe that’s why no one wants to move there.
Go take your LBGTQFUFUFU propaganda and ROT.
Re: Disgraceful to Democrats..Wow! Is that the kind of circular reasoning which is the consequence of living in a jurisdiction in which the recreational use of marijuana is lawful?
at this point pure virtue signaling. I sometimes wonder if those people can read
Coincidence that this comes on the heels of the announcement sentencing for Trump will not be delayed until after the election? I think not. Don’t even try to tell me our dems aren’t a regime, or that everything they do or say is not well calculated and contrived.
The spooky thing is how many are perfectly fine with it. We could very easily be akin to a new, global USSR in no time. It would not surprise me in the least if some Western governments began openly referring to themselves as socialist or communist republics or some variation. Democracy, my behind.
Very concerning, but the list of cosponsors is hardly a surprise. The average voter has zero comprehension of the ramifications.
Manchin won’t go for this and in an election year either Testa or Sharrod Brown will also balk. Schumer and the left are fascists.
You still need FIFTY and if Manchin and/or Testa balk they only have 49.
It is now clear to any sane individuals that the intent of the members of the DNC is to remove the Constitutional Republic form of governance from the United States of America and replace it with a Communist/Marxist form of governance. With their multi-front attacks on “democracy” (see the Democratic Presidential primary), they are no longer hiding the Plan. I fear the November election will be a nightmare in the struggle for a Constitutional Republic.
This is a small a small but important part of what the Democrats have been all about since Obama was elected: institute unrestricted one-party rule at all levels of government. They are the true fascists, the real threat to democracy, the enemies of civil liberties.
Schumer along with the other Woke/Left wing Dems fear Trump and what will happen to them along with the other Left Wing Radical Dems and Left wing special interest groups, Deep State and etc. They fear the loss of power, corruption charges and more against their actions and power grabs over the last four years. This is just the latest and there will be more they will not stop. If Trump wins, Republicans take the Senate and maintain control of the House, they fear they will be exposed along with all their corruption, and some may find themselves in court.
This has no chance of passing. But commies gotta commie.
This is basically a declaration of war.
They, in fact, seek also to strip the president of power so that any prosecutor can sue or charge the president for any perceived “crime” by stripping him or her of immunity. I could perceive where congress or a prosecutor appointed by congress or outside of congress could file charges on a president for vetoing an act of congress. They would also negate the power of impeachment by tying a president up in court for any perceived slight or action so that they literally could not function. It would strip away all the defences the president has in dealing with impeachment
This would, in fact, make congress paramount over all the branches of government. That is not the design or intent of the founders of this country. They knew what they wanted when they constructed the 3 branches because the founders knew that a parliament or legislature could become as dictatorial as any other branch. With an impotent or figurehead president who would protect the people against the tyranny of the majority. Certainly not the courts or the president.
This would shake the constitution to its core and basically invalidate or destroy it. It would eliminate the Bill of rights because congress would be the only one to have the final power to interpret it. We would, in essence become Great Britain which his already a mess and trampling all over the right of their people.
You can bet that the Democrats would immediately eliminate the filibuster to pass this.
This is highly dangerous ground that they are treading and they have no idea what this will loose.
Our Ancestors fought a revolution to remove parliamentary dictatorship, this would bring it back. This is an Abomination.
Might make a great way for the Republicans to show to the people who truly is the greatest threat to Democracy
GEB,
Great comment and I agree.
But to the Democrats, it is all about, “Get Trump!”
And I do believe they would prefer to gut the Constitution in favor of a one party rule. Theirs.
Democrats, by their obvious words and actions are the real threat to Democracy.
I am doubtful that this stuff from the Demons is primarily the result of their fear of Trump. I think that this IS their plan, and that Trump and the concocted prospective excesses that they attribute to him are nothing more than plausible (they hope) excuses to obtain what they have wanted for quite some time – the power to dictate whatever terms they wish to every non-elite person, about what that person may or may not do, and when they may or may not do it. It is the ultimate triumph of the ambition of nearly every professional politician to be able to act as God or King. They are unable to see that not far down that road, there will be one person, or small group, that usurps nearly all of that power, because they are completely blinded by the lust for it.
Bring back dueling with pistols to resolve matters between Party leaderships. Simpler Times. Simpler Solutions.
JAFO,
I vote for them using these, https://www.davidepedersoli.com/en/product/mortimer-pistol-flintlock-model
Niiiice, Upstate!
Good gracious! They do have gall, don’t they. And as soon as they have a majority they will pass it, even if it fails now. This election is getting more crucial by the day.
I would hope that the fact that only 34 Democratic senators co-sponsored this bill means that there might be one or two that would vote against it causing it to fail in the Senate. If that is not possible, at least I would count on the bill not coming to a vote before we’ll have a chance to install a republican majority in the Senate
Is there any doubt left, that the Dems are just plain EVIL? Sick, perverted, disgusting degenerates all. It’s the result of their rejection of God.
These marauders are pushing hard to learn the lesson of William Roper the younger, who would have cut down all of the laws in England to go after the Devil, were it not for the arguments of his sage father-in-law.
Well summarized in A Man For All Seasons. One of my favorites and extremely salient to this abomination. I think Chuck Schumer has lost his mind and so have his acolytes.