UBI and labor supply

What do UBI proponents expect would be the effect of a UBI on labor supply?

Let me show you a few slides from my 2015 presentation on the subject.

Suppose, completely hypothetically, you ran a small RCT on UBI. (ht Morgan Warstler)

Then there would be no meaningful

increase in labor demand (as a policy choice, or potentially as a direct effect of the UBI if demand is unmanaged) [to] restore[] the original quantity of work provided, but at significantly higher wages.

(Fourth slide above.)

So what you would expect is to be stuck at the second diagram reproduced above. You would see a some reduction of the quantity of labor supplied, rather than the desired effect of an unchanged quantity of labor supplied, but at somewhat higher wages (the third diagram).

To the degree that a basic income increases entrepreneurial intentions, that might also, by a completely separate mechanism, yield an immediate-term reduction in employment and income, while recipients reduce labor force participation to devote time to enterprises not yet paying off.

Hypothetically speaking, a two percentage point difference in employment and 1.3 hour per week average reduction in work hours — with both effects often indistinguishable within a 90% confidence interval, probably always indistinguishable within a more conventional 95% confidence interval — might strike one as a surprisingly small effect for a $1000 per month basic income pilot.

Which might be a shame! It would suggest only a modest wage increase if a genuinely universal basic income of that amount were enacted, assuming continued full-employment macro policy.

But, at least directionally, it would suggest an increase in wages for a constant quantity of labor supplied.

And recipients would enjoy the per se benefits of an extra $1000 a month, taken in some mix of cash and time for education, care, leisure, or entrepreneurship.

Trump v. United States: Greatest Hits

It's a fraught time.

Last night we endured a ranting lunatic allege that the nearly 80,000 alleged gang members El Salvador's President Bukele has detained without process have been dumped onto America's streets, contributing to a US crime wave that simply does not exist over the relevant time frame. (The crime wave that did exist emerged only during the ranting lunatic's presidency, years before, and has been subsiding ever since.)

In the meantime, we still haven't settled on an alternative to the ranting lunatic that sane people might vote for.

Nevertheless, I'm stuck in a news cycle three-weeks old. Remember that one? The one that marked the end of liberal democracy in the United States by providing a road map for how a US President can wield the vast powers of the American state without He or His suboordinates facing any practical risk of accountability to the law?

I mean, I know there has been a vibe shift. But I'm having a hard time letting go of the whole liberal democracy thing. I guess it's pretty cringe.

Anyway, this piece won't be an essay. It will mostly be exceprts of the Supreme Court decision, concurrences, and dissents. I've discussed Trump v. United States a lot over the last few weeks, and I just want to keep some of the most prominent bits around to refer to.

Before delving into the effluent from the Injustices of our Supreme Coup, I want to reproduce a sketch from Asha Rangappa. (Click for full size.)

Flowchart of determinations under Trump v. United States immunity tests

I think it's a very helpful summary. Please do read the excellent essay from which I have stolen it. Rangappa writes:

What you might notice if you follow the lines above carefully is that the question of motive — the reason that an action was taken — doesn’t even enter the equation until after the determination of whether the actions was official or unofficial has been made. Indeed, the Court explicitly states that "In dividing official from unofficial conduct, courts may not inquire into the President’s motives."

This is an astonishing statement, because it effectively means that it does not matter if a President uses the official levers of power with corrupt intent, for personal gain, or as retribution. In other words, the Court engages a sleight of hand where a critical distinction between lawful and unlawful conduct — the heart of criminal law, which rests on whether a person acted with a specific state of mind, or mens rea — ceases to exist when it comes to the President.

Let's go now to some selections from the decision. I'll refrain from commenting. I'm just excerpting for posterity. I may add to the collection over time.

Excerpts from Opinion of the Court, by John Roberts

From Opinion of the Court, John Roberts, p. 4:

Citing Marbury v. Madison, 1 Cranch 137 (1803), the [D.C. Circuit] court distinguished between two kinds of official acts: discretionary and ministerial. 91 F. 4th, at 1189–1190. It observed that “although discretionary acts are ‘only politically examinable,’ the judiciary has the power to hear cases” involving ministerial acts that an officer is directed to perform by the legislature. Ibid. (quoting Marbury, 1 Cranch, at 166). From this distinction, the D. C. Circuit concluded that the “separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” 91 F. 4th, at 1191. In the court’s view, the fact that Trump’s actions “allegedly violated generally applicable criminal laws” meant that those actions “were not properly within the scope of his lawful discretion.” Id., at 1192. The D. C. Circuit thus concluded that Trump had “no structural immunity from the charges in the Indictment.” Ibid.

From Opinion of the Court, John Roberts, p. 7:

No matter the context, the President’s authority to act necessarily "stem[s] either from an act of Congress or from the Constitution itself." Youngstown, 343 U. S., at 585. In the latter case, the President’s authority is sometimes "conclusive and preclusive." Id., at 638 (Jackson, J., concurring). When the President exercises such authority, he may act even when the measures he takes are "incompatible with the expressed or implied will of Congress." Id., at 637. The exclusive constitutional authority of the President "disabl[es] the Congress from acting upon the subject." Id., at 637–638. And the courts have "no power to control [the President’s] discretion" when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury, 1 Cranch, at 166.

If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.

From Opinion of the Court, John Roberts, p. 8:

“To the executive alone is intrusted the power of pardon,” and the “legislature cannot change the effect of such a pardon any more than the executive can change a law.” Id., at 147–148. The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” Youngstown, 343 U. S., at 637–638 (Jackson, J., concurring).

From Opinion of the Court, John Roberts, pp. 8-9:

Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

From Opinion of the Court, John Roberts, p. 14:

we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. Indeed, if presumptive protection for the President is necessary to enable the “effective discharge” of his powers when a prosecutor merely seeks evidence of his official papers and communications, id., at 711, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754.

But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute

From Opinion of the Court, John Roberts, p. 17:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

From Opinion of the Court, John Roberts, p. 17:

Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

From Opinion of the Court, John Roberts, pp. 20-21:

the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

From Opinion of the Court, John Roberts, p. 31:

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.

From Opinion of the Court, John Roberts, p. 37:

We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith. See United States v. Stevens, 559 U. S. 460, 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”). Nor do we do so today.

From Opinion of the Court, John Roberts, p. 40:

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Post, at 18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post, at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.

From Opinion of the Court, John Roberts, p. 42:

The judgment of the Court of Appeals for the D. C. Circuit is vacated

Excerpts from Clarence Thomas, concurring

From Clarence Thomas, concurring, p. 8:

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.

Excerpts from Amy Coney Barrett, concurring in part

From Amy Coney Barrett, concurring in part, p. 6:

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. §201(c). The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. See Art. II, §4 (listing “Bribery” as an impeachable offense); see also Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President). Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

Excerpts from Sonia Sotomayor, dissenting

From Sonia Sotomayor, dissenting, pp. 10-11:

The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.

From Sonia Sotomayor, dissenting, p. 12:

the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18. It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is destined to be vanishingly small.

From Sonia Sotomayor, dissenting, pp. 29-30:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). 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. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

From Sonia Sotomayor, dissenting, p. 30:

With fear for our democracy, I dissent

Excerpts from Ketanji Brown Jackson, dissenting

From Ketanji Brown Jackson, dissenting, pp. 9-10:

Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitution,” ante, at 7, or as needed “to carry out his constitutional duties without undue caution,” ante, at 14, he is likely to be deemed immune from prosecution.

Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all. Also, under the new Presidential accountability model, the starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be. Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts.

From Ketanji Brown Jackson, dissenting, p. 10:

To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those who wield executive power on his behalf.’ ” Ante, at 8 (quoting Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204 (2020)). While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.

From Ketanji Brown Jackson, dissenting, p. 11:

under the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the general criminal prohibition.

Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse; the law simply does not apply to him. Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “‘official power’” in doing so. Ante, at 19. In the former paradigm, the President remains subject to law; in the latter, he is above it.

From Ketanji Brown Jackson, dissenting, pp. 13-14:

whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. Ante, at 6–9. However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess.

Nor does the majority explain how to consistently distinguish between official and unofficial acts. Quite the opposite, in fact. While acknowledging that this is a critical line that courts must draw in order for its new accountability model to work properly, the majority simultaneously cautions that making this distinction “can be difficult”—likely a gross understatement given the recognized “breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States.” Ante, at 17.

From Ketanji Brown Jackson, dissenting, p. 15:

while Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office. Who will be responsible for drawing the crucial “‘line between [the President’s] personal and official affairs’”? Ante, at 29. To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly criminal acts as “core,” “official,” or “manifestly or palpably” beyond the President’s authority.

If the issue was the lawfare

An apology for the Enabling Act that the Supreme Court has judicially inserted into American law goes like this:

By prosecuting a former President, Democrats opened a Pandora's Box under which every ex-President would be prosecuted by their rivals upon retirement, crippling the office, and discouraging high-quality candidates from seeking it. The Supreme Court had to prevent this.

Let's say this was your honest concern, and you are John Roberts.

You are not trying to render the Executive unaccountable. You want accountability, but some form of accountability that would deter routine political show trials of each party's highest-profile figure, prosecuted by the opposing party.

That might be a reasonable goal.

But if it really was your goal to deter "lawfare" while keeping the Executive Branch lawful, the decision you craft would look nothing like Trump v. United States.

Sure, you might grant pretty broad immunity to the President, as this decision does.

But you would not grant impenetrable deference to the President's pardon power. You would encourage, rather than prohibit, judicial inquiry into the motivation for pardons. Pardons for crimes ordered or encouraged or intended to serve the interest of the President would be invalid.

The President would still be immune. His subordinates, however, would not be. His suboordinates would still have reason to refuse unlawful orders. At the very least, they would demand legal cover before following deeply questionable commands. (Just as Obama did, before icing a US citizen in a drone strike.)

This is the accountabilty equilibrium we created after the Nixon Administration. Yes, Ford pardoned Nixon. Nixon got to live the rest of his days as a free man, even an eminence grise.

But many of his subordinates were imprisoned — H. R. Haldeman, John Ehrlichman, Charles Colson, John Mitchell, G. Gordon Liddy, James W. McCord Jr., John Dean, Dwight Chapin, Herbert Kalmbach.

Had Trump v. United States been the law in 1972, all of these men could have been peremptorily pardoned. No judicial inquiry could have been made into the motivations for those pardons. No criminal liability could attach to the President for making them. No subpeonas could penetrate a hermetic wall of silence, since any contempt charges could be pardoned as well.

Trump v. United States doesn't just grant the President immunity. It takes the heavily litigated notion of "executive privilege", renders it unjudiciable, and extends it as far and wide as the President wishes to extend it — with no remedy, no consideration of other interests, no hope ever of piercing it.

In its own words, Trump v. United States is about encouraging "bold", "unhesitating", "energetic", "vigorous" action by the President. John Roberts could have sought to balance the public's interest in an effective Executive with the public's interest that the President "take Care that the Laws be faithfully executed". He could have whispered into the Constitution the post-Richard-Nixon balance. He chose not to.

John Roberts and his henchmen are very familiar with this history. What they instead chose to whisper into the Constitution was a remedy for the accountability that the Nixon administration faced. They chose quite deliberately not merely to immunize the President, but to create an unaccountable Executive, whose breadth is as wide and encompassing as the President chooses by exercise of his power to pardon.

No longer a liberal democracy

  • This post was meaningfully revised at 2024-07-07 @ 08:10 PM EDT. The previous revision is here. (See update history.)

The United States is no longer a liberal democracy.

As of Monday, July 1st, 2024 and the Supreme Court's decision in Trump v. United States, the United States fails liberal democracy's most basic test. Citizens no longer have rights against the state that cannot be abrogated without due process, because presidential prerogatives are granted priority above due process and rendered immune from challenge by the courts.

The Supreme Court has legislated a loophole through the constraints on presidential power that is so large, so conveniently and readily accessible, that all notional limits to government power can be circumvented by a determined President, with almost no risk of being held accountable.

In a nutshell, the decision claims that the President has "conclusive and preclusive constitutional authority" over "commanding the Armed Forces of the United States" and "pardons for offenses against the United States".

[T]he nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.

(See update below.)

A President, the decision pretends, remains accountable for "unofficial acts". For "official acts" beyond his "conclusive and preclusive constitutional authority", the President enjoys "at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility."

In theory, this "presumptive immunity" can be rebutted, overcome, but

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose... Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

This decision is Stephen Miller, translated into legalese:

Our opponents, the media, and the whole world will soon see as we begin to take further actions that the powers of the President... are very substantial and will not be questioned. 1

Commanding the armed forces plus the pardon power, if unaccountable and unreviewable, are sufficient to impose dictatorship.

"Can't you just shoot them? Just shoot them in the legs or something?", Donald Trump asked of General and Chairman of the Joint Chiefs Mark Milley, when protesters gathered at the White House following the killing of George Floyd.

Their answer, of course, was no. If Trump had ordered them to do so, it would have been an unlawful order, and they would have refused. If he insisted, he would have risked imprisonment. If they had acted, so would they.

Today, if a President orders the armed forces to shoot at protesters, it would still be an unlawful order. But Trump would enjoy absolute, unreviewable, immunity for giving it. But Trump would enjoy "at least presumptive immunity", and perhaps absolute immunity, for giving it. If the order was made informally, in the context of discussions with the subordinates with whom he collaborates in official acts, the decision renders it extraordiarily unlikely any judicial process could intervene to discover it.

It would still be unlawful for his subordinates to act upon the order. But the President could promise to pardon subordinates who act. He could fire subordinates who refuse. The decision places both the pardon power and the President's "unrestricted power to remove the most important of his subordinates" beneath a shield of absolute immunity.

Obviously, this would be, should be, illegitimate. A President is required by the Constitution to "take Care that the Laws be faithfully executed" as much as he is empowered as Commander-in-Chief. But on Monday, the Supreme Court plainly and explicitly placed the latter before the former.

Shooting a bunch of protesters "in the legs" is small potatoes. Anything the armed forces of the United States might conceivably do the President can order. Any legal restraints that might bind his subordinates, the President can pardon. Conscientious resistors can be fired, detained, made to go through some things.

Even if the Federal government cannot, might not states prosecute generals and soldiers who injure, kidnap, or kill? The President's pardon power does not reach state law.

This strikes me as a pretty thin read on which to place ones hopes. Good luck enforcing arrest warrants against members of the US military for following the President's orders. Good luck preventing the President from having the armed forces detain any prosecutors or judges determined to produce them.

From Sonia Sotomayor's dissenting opinion:

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. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Obviously, it is more essential now than it was a week ago that we not elect Donald Trump to a second term. But the identity of the President is not the problem here. Here's Joe Biden:

You know, at the outset of our nation, it was the character of George Washington, our first president, that defined the presidency. He believed power was limited, not absolute, and that power would always reside with the people — always.

Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it.

I know I will respect the limits of the presidential power, as I have for three and a half years. But any president, including Donald Trump, will now be free to ignore the law.

It's not about Donald Trump. United States Presidents are usually not of great character. It takes tremendous ambition, and a certain degree of sociopathy, to win a prize as coveted and valuable as that office. Every President must be willing to do things that the less sociopathic among us would struggle to live with. Even just and necessary military action imposes misery and death on people who do not deserve it, who bear no fault.

Donald Trump is bad. Barack Obama repudiated prohibitions against assassination that were table stakes for the "good guys" when I grew up, and simply normalized the practice. At least Obama was sufficiently chastened by risks of accountability that he had the Office of Legal Counsel perform a thorough analysis before he assassinated a US citizen. (They said it was okay.) Joe Biden has to his great credit largely ceased America's drone assassination programs.

Should we have trusted the character of George W. Bush and Dick Cheney to protect our rights? The character of Bill Clinton? Richard Nixon? A rights regime that depends upon the character of the President is not a rights regime at all. Whether it's Donald Trump or anybody else, the ring of power that the Supreme Court has forged will do its work of tempting tyranny and atrocity. There are always crises, and in crises, anything seems justified. The scandal becomes failing to exploit the tools you have at hand.

If the United States is to be a liberal democracy, this (legally shoddy) decision must be reversed. Since the majority at the Supreme Court claims their coup is embedded in the Constitution itself, Congress is helpless to directly reverse it.

John Roberts has always presented himself as an institutionalist. He is not an institutionalist. On Monday, John Roberts did far more damage to America's instituions than Donald Trump did on January 6.

In the post Marbury v. Madison era — a decision we must now also revisit — only the Supreme Court can undo the work that it does when it speaks ex cathedra for the Constitution itself.

I have been an advocate for Supreme Court reform that strives not to be overtly political. I've sought procedures that would prevent factional misuse of the Court, rather than advance my own faction's views. Rather than expand or "pack" the Court, I have argued we should "merge the Court", to have its work be done by the full Federal apellate bench, with panels that hear individual cases chosen by lot. I still think that's a good approach.

But this Court has created a crisis. The scandal becomes failing to exploit the tools you have at hand. It is to Joe Biden's deep discredit that, when pressed for Supreme Court reform, he commissioned a study and then did nothing with it.

We are in a Wile-E-Coyote moment. The cliff has gone out from beneath our feet, but we have not yet fallen. The awful powers latent in the Supreme Court's decision have not yet been abused to crush democracy, but inevitably, inevitably, they will, if they remain as this Supreme Court has defined them.

If the possibility is not permanently foreclosed on November 5, if by the grace of God alone we get another shot, we need to pack the court ASAP, and then generate a test case under which this calamity of a decision will be overturned. Normalizing court-packing is not great, but it's the only check the other branches currently have when the Supreme Court consitutionalizes atrocity.

Once this awful decision has been relegated to history, I hope that we do restructure the Court to make it structurally less susceptible to serving as a tool for factional mischief. I hope that we do revisit — and temper rather than eliminate — Marbury v. Madison.

But that is all for the future. The Supreme Court set the world aflame on Monday. If you haven't noticed the heat, if you don't notice the blisters already forming on your skin very soon, then we are all going to burn.

Update 2024-07-07: Today I sat for a careful read of the full packet of syllabus and decision and concurrences and dissents issued by the Supreme Court for Trump v. United States.

In my origial piece, I erred when I claimed the majority named "commanding the Armed Forces of the United States" a "conclusive and preclusive" power of the President.

The majority cites "commanding the Armed Forces" in the following context:

Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” §1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” Trump v. Vance, 591 U. S. 786, 800 (2020). They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.

But the decision later says of Presidential authority derived from explicit enumeration in the Constitution that it is only "sometimes 'conclusive and preclusive'". (My emphasis.)

The decision does explicitly place the pardon power among as among the President's conclusive and preclusive authorities. But I was wrong to assert that it places "commanding the Armed Forces" under its new, automatic and unreviewable, absolute immunity category. It might! It might not!

"Commanding the armed forces" is definitely an official act, and as such the decision grants an immunity that is "at least presumptive" and perhaps absolute:

At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

The Court has not decided yet whether commanding the armed forces is a "core constitutional power", or whether all of a President's official actions enjoy immunity absolute immunity.

Suppose we are lucky, and commanding the armed forces is subject only to "at least presumptive immunity".

As Justice Jackson emphasizes,

The majority... provides no guidance as to when, how, or why the President’s “presumptive” immunity for noncore official acts might be rebutted, saying only that applying the criminal law to a President’s acts must pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Justice Jackson views the majority as basically placing any criminal accountability for a President's official acts at the discretion of the Supreme Court. She also emphasizes that the complex gating procedure the decision enshirines renders any criminal accountability of a President much more unlikely and uncertain than it had been previously, diminishing the deterrent to bad acts criminal accountability is supposed to provide.

Justice Sotomayor is even more pessimistic about any prospect of Presidential accountability at all under the decision.

Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless...

The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.

I am glad that "commanding the Armed Forces of the United States" has not yet been adjudicated to be — or not to be — a "core constitutional authority" already protected by absolutely immunity. It's current status is at least presumptively immune but perhaps absolutely immune, with how one would, or whether one could, pierce and rebut presumptive immunity not defined.

I can't say I'll be sleeping much easier.

Let's let Justice Thomas have the last word:

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.

Good night.

  1. My elipses elide "to protect our country", by which Miller meant banning people from several predominantly Muslim countries from entering the United States. If you think Miller meant to limit substantialness and unquestionability to some narrow, necessarily defensive scope, then you are very generous in your interpretations. You entertain a version of Miller who is much more measured and prudent than the United States Supreme Court.


Perhaps Joe Biden is determined, for the best reasons or the worst, to be the Democratic Party's candidate for President, despite misgivings engendered by his recent debate performance. If that is the case, Joe Biden will be the Democratic Party's candidate for President. He won the Democratic Party's primary election.

Perhaps Joe Biden is not so determined to be the Democratic Party's candidate for President. If that is the case, you may never, ever know it.

As old and stumbling as Joe Biden may have appeared on the debate stage, the Biden Administration has comported itself with tremendous intelligence. Should it entertain a change of leadership, let's imagine that it will do so with the same intelligence. What would that look like?

First, over the next few weeks, expect any possibility of a change of leadership to be mocked, rejected, completely ruled out, in every public communication. This weekend's mini rebellion among pundits and Democratic Party has-beens will be crushed. Joe Biden may be too old, he may not be the candidate we'd want to save democracy itself, but he will be the only candidate we have.

All of us who do not want a second Trump administration will fall back into line. He has, in fact, been the best domestic policy President since Lyndon Johnson. Compare him to the alternative, not the almighty, we will say. It is not the doddering old man we are electing, but the remarkable administration that has somehow conjured itself around him.

It won't be an easy sell to politically detached swing voters, who decide US Presidential elections. A personal or symbolic connection to an imagined heroic leader may be more accessible to those voters than arcana like this adminstration's remarkable FTC, NLRB, CFPB, or its SAVE plan. Nevertheless the excellence of the administration's accomplishments will have the benefit of being true, and it will be all we have.

Why, if Biden is considering withdrawing, will his administration completely rule out the possibility of withdrawing? Because if there is continued, credible, will-he-won't-he chatter, that will weaken him and render his continued candidacy less tenable. And in order to successfully withdraw, he must withdraw from a position of strength rather than weakness within the Democratic Party firmament. Any succession must be a negotiated succession, and Joe Biden is his own BATNA.

As the Biden Administration quietly discusses a potential replacement ticket, ambitious strivers will try to preen and threaten their way onto it. It must always be credible for the administration just to walk away and stick with Plan A. Disappointed shadow candidates may be tempted to appeal to the public, via their duly elected representatives on the opinion pages of The New York Times. The administration must make clear that its response to such perfidy would be to shut the whole thing down and double-down on Joe Biden's status as the default and inevitable Democratic nominee for President.

The stupidest idea widely mooted is for an "open convention". Obviously, pundits love the idea. We can have a dramatic, fast-paced horserace to supplant this current one, which smells like mothballs and stale poop. But just because a game show is good television does not mean it is a good way to choose a nominee.

An "open convention" would have no meaningful democratic legitimacy. No one actually voted for the delegates who will appear at the Democratic Party convention. Democrats voted for whoever was pledged to Joe Biden. Which particular humans show up on the convention floor is determined by processes that are not meaningfully democratic. Those processes may seem "random", but they are not, they have all kinds of systematic biases towards certain kinds of enthusiasts and operatives not remotely representative of Democratic Party rank-and-file. Choice by convention delegates is not some defensible sort of sortition by the back door.

The only person with any democratic mandate to choose a successor to Joe Biden as Democratic Party nominee is Joe Biden himself, who won a Democratic Party primary open to the public at-large.

Putting aside endlessly contestable arguments about legitimacy, the whole point of switching horses is risk management. The only reason Joe Biden would and should step down is if he is sure his replacement would have a much stronger shot of winning the general election. Throwing the dice on an unpredictable disorganized contest, one that might become bitterly divisive and even inspire rioting or violence at a Chicago Democratic Party convention, does not meet that bar.

By the time of the convention, the identity of the Democratic nominee will be a fait accompli. Not-really-elected delegates will not decide, and should not decide. There are two supedelegates. They will decide.

The first superdelegate, of course, is Joe Biden himself. The second superdelegate is Kamala Harris. No change of ticket can occur without Harris' enthusiastic endorsement.

One way to win her endorsement is to put Harris at the head of the ticket. That might be a reasonable option! But observers underestimate Harris by presuming that she herself — me! me! me! — is the only alternative candidate that she would endorse. Harris ran in a Presidential primary, and withdrew quickly when she realized the electoral stars would not align for her.

The Biden-Harris Administration will study the politics of potential tickets as best it can. There may be some degree of bias, some tendency to overestimate the strengths and underestimate the deficiencies of a Harris-led ticket. But some degree of bias will be a limited degree of bias. If the Biden-Harris Administration comes internally to a conclusion that a different candidate would have a much stronger shot, Harris is not such an egotist that she will risk throwing the country to Donald Trump in exchange for a lottery ticket to become President. Of course, Harris will negotiate a cabinet position for herself, or a quiet promise of favorable consideration should a vacancy arise on the Supreme Court. But she will not stand implacably in the way of whomever the administration determines to be the strongest contender.

The most likely outcome of all of this is just what it was before the miserable debate. Most likely, the general election will be a contest between Donald Trump and Joe Biden. Biden might be implacably opposed to stepping down. Or, he may be open to the idea, but this delicate, Democratic-Party-internal dance to annoint a credible successor might break down. Some narcissist the administration decides against could take his case to the opinion pages. If there's too much of that, the administration will fall back to the inevitable and deny it ever seriously considered making a change.

But if ambitious Democrats prove willing to abide a discreet selection process, it is quite possible that the only two people who can choose their successor will do so.

Paradoxically, the more inevitable a Biden-Harris ticket comes to seem over the next few weeks, the more possible the emergence of an alternative becomes. But in no case is it very likely.