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.