the supreme court immunity decision was dumb

this is not the work of people who have thought things through at all

The Supreme Court ruled in Trump v. United States that the president enjoys absolute immunity for “official acts” and a presumption of immunity for a substantial set of other conduct. This decision was nominally made by originalist jurists who pride themselves on interpreting the Constitution. In fact, it was made by six justices who seem unacquainted with our Constitutional system, and who I can only imagine have fierce personal loyalty to Donald Trump. After all, Trump appointed three of the six justices in the majority, and is the champion of the ideology of two more. John Roberts plays a moderate on television, but by providing a sixth vote for this decision, shows himself to be in effect a Trumpist.

If you just read the plain text of the Constitution, Article II Section 4 states

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This clearly implies that the president can commit crimes, because the president can be removed from office for those crimes through the process of impeachment. Yet the Supreme Court’s decision would shield the president even from a treason prosecution after his or her term has ended if the treason was committed in the course of his or her official duties, such as directing the military.

A simple hypothetical is this: Donald Trump during a second term gives classified information about troop positions to Russia in exchange for a Russian investment in his business. The result is that Russia blows up American soldiers. Clearly treason, yet done in the course of his official duties as commander in chief and using his power to declassify. The court holds that this cannot be prosecuted, even after his term.

This is the first layer of this case: Trumpism. The justices clearly have a strong personal fealty to Trump, believe he will win, and want to empower him during a second term. They want to do this while retaining the optionality to say that Democratic presidents are committing crimes, for instance, by acts not being deemed “official” after the fact. This demonstrates the second layer of badness in this decisions.

post-hoc everything

By creating a new distinction between official and unofficial acts, and by having this laid out in a court decision rather than in legislation which attempts to clearly and prospectively define the distinction, the court is basically creating a ton of uncertainty. Is any particular act official or unofficial? Such a distinction in the particulars will often be metaphysical, and in practice the distinction will be determined years after the act, in court cases, by the partisan lean of the court and the party of the president.

A better system would have been to hold that, as the Constitution text says, the president can commit crimes and while in office shall be held accountable by elected reps but after (which the Constitution does not address) may be held accountable by the courts. But now we’re going to have years long legal battles over what is and isn’t official, and of course the rules will be made up as we go along and are not subject to any kind of legislative oversight. In practice, bad actors like Trump with a favorable partisan court will do whatever they want. Trump came close to ordering the military to shoot protesters in his first term and was dissuaded only by the threat of consequences afterward. By being a bunch of dumdums, the conservative court has removed even the prospect of delayed prosecution, and probably invites cases that challenge whether Congress can put any restrictions on the president using force, etc.

This amounts to both a massive expansion of executive power and a massive expansion of judicial power, although judicial power will be wielded relatively slowly.

schizophrenic decisions

The third layer of badness of this decision is how it combines with other decisions to create terrible incentives for the executive and for our politics in general. The Trump immunity court case was rendered only a week after Loper Bright Enterprises v. Raimondo, which basically said that executive agencies are no longer entitled to deference in their rulemaking. The way the American system works is that Congress writes a broadly worded law, and then executive agencies under the direction of the president turn that broad wording into specifics that end up regulating businesses and other facets of life. Congress may say “banks will take only appropriate risks” and then the SEC may say “appropriate risk looks like your balance sheet having these 10 specific characteristics which are highly technical” or something like that.

This system allows Congress, which is composed mostly of lawyers, to rely on the expertise of subject matter experts in the agencies when turning a statute into the law that gets enforced.

In the Loper case, the Supreme Court threw that process out, and basically says that now the courts have the power to second-guess the process of agency rulemaking. So basically every business regulation in the US, including key environmental regulations, can now be tied up in court for years. New rules will take forever to make. Every time you want to do something, ask a judge. Amazing!

The issue here is that the Loper decision hamstrung the executive while the Trump immunity decision massively empowered it, just in different ways. It seems very difficult now for the EPA to make a new environmental rule, but very easy for the person of the president to send Seal Team 6 to assassinate business executives that violate that same rule. So the person of the president may promulgate any rules he or she wishes, and back them up with deadly force, yet an executive agency cannot make a rule without consulting a court.

It makes no sense! And it creates extremely perverse winner-take-all incentives to the presidency. For instance, if Democrats win in the fall, what is stopping them from using the power of the military to remake our constitutional system in any way that the president personally wishes? The president has absolute immunity in his or her constitutional position as the commander in chief, so it seems legal to me (disclaimer: not a lawyer and not legal advice) for the president to send in the military and set up a parliamentary republic with totally different rules and a different constitution. If you don’t like it, tough! There’s nothing you can do unless you can get 67 votes in the Senate to impeach, even after the president leaves office.

play stupid games

The Court, in its infinite wisdom, has not only issued two dumb decisions that are likely to enable bad actors and hamstring good ones, but it has moved us substantially towards a personalistic elective monarchy. This is bad, and its certainly not what any of the Framers of our Constitution thought. I personally don’t think arguing about the deep motives of our Framers is useful, but even on those terms that the conservative court has set itself, they don’t seem to know what they are talking about. But, again, that makes sense because these decisions were made to help Trump and hamstring the EPA with little regard for their other consequences.