SCOTUS gives Trumpian autocrats a map for abusing power
The imperial court sides with their king.
PN is a reader-supported publication made possible by paid subscribers. Appreciate our independent journalism? Then please sign up to support us.
Not content to utterly upend the separation of powers as it did last week by gutting the administrative state, the right-wingers on the US Supreme Court yesterday further unbalanced and destabilized the republic by putting the president squarely above the law.
The conservative majority’s decision in Trump v. US invents an immunity that applies to the president alone (at least when their name is Trump) and sweeps so broadly as to make criminal prosecutions nearly impossible.
At first glance, it may be tough to square this expansive grant of power to the presidency with the Court’s blatant power grab from last week. There, the Court’s conservatives gave the federal courts exclusive authority over interpreting regulatory law.
Such a move substantially weakens the power of the president and the executive branch because any regulatory agenda becomes subject to the will of individual judges. Yesterday’s decision granting a substantial amount of immunity to Trump restores no authority to the executive branch as a whole. Rather, it creates a massive carveout from prosecution for the president if he or she is engaged in an “official” act.
King Trump
Writing in the Harvard Law Review two years ago, Stanford Law School Professor Mark Lemley aptly deemed this Court “The Imperial Supreme Court.” It’s a Court characterized, Lemley writes, by a willingness to “embrace conflicting philosophies to achieve the ends it wants” and one that is “consolidating power and undercutting the powers of other branches of government.”
With yesterday’s decision, the Imperial Court ushers in the era of the Imperial Presidency, one unfettered by most checks and balances. However, the Court gave the federal courts the sole power to determine whether an act is official or unofficial, keeping the base of power squarely in that branch.
Given that this Court’s conservatives have displayed extraordinary intellectual and moral flexibility in their quest to cement a hard-right government, it’s not difficult to imagine a world where this power is deployed to protect Republican presidents and punish Democratic ones.
Indeed, both the timing and scope of the decision highlight that the conservative majority went to great lengths to build a protective edifice not just around the president as such but also around Trump in particular.