Supreme Court Decisions: Presidential Immunity and Constitutional Reversals — Gadsden

July 4th, 2024, the day we celebrate the signing of the Declaration of Independence.

That document reads in part:

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Some of those “abuses and usurpations” committed by the crown included:

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”

“For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

“For imposing Taxes on us without our Consent:”

“For depriving us in many cases, of the benefits of Trial by Jury:”

The Constitution was written a decade later and in it the Founders established a few key provisions.

Congress has the sole power to write laws.
Congress has the sole power to appropriate money.

The Executive is the commander-in-chief of the military and the chief law enforcement officer.

The news cycle in the week leading up to this holiday weekend has a lot of heads exploding. Let’s start with the Supreme Court decision on presidential immunity. We’ll get back to that boring constitutional stuff anon.

The court’s ruling on immunity changed nothing. It was perfectly reasonable. The court said the president enjoys immunity when acting in accordance with the powers vested in the executive by the Constitution, and does not enjoy any special immunity when he is not acting in accordance with those powers. The hyperbolic “example” in one of the dissenting opinions that the president would be immune from prosecution if he “Sent SEAL Team 6” to take out his political rival is technically true but the circumstances would have to be extraordinary to fall under the powers granted the executive.

Abraham Lincoln took military action against his “political rival” Jefferson Davis. His “political rival” was engaged in (and leading) an armed rebellion and Lincoln was acting in his legal capacity as commander-in-chief of U.S. military forces and as chief law enforcement officer.

Short of a similar scenario the president would not be immune from prosecution for such an act. And I would note that short of a similar scenario the military would rightly refuse such an “order.”

This decision by the court is a “nothing burger” — the office of the president has no more power or authority now than it did last month. The pols, talking heads, and President Biden screeching about an unchecked dictator are lying. They know they are lying. They are lying on purpose to scare voters.

Now let’s get back to that pesky document that seems to drive Democrats out of their minds — the Constitution.

The next big news item this week was the Supreme Court reversing Chevron. There is only one big problem with this decision — it took way too long.

The present-day version of that “multitude of New Offices” the Founders were complaining about is the current incarnation of the executive branch. The case that prompted this was Loper. The National Marine Fisheries Service decided that they would charge fishermen $700 per day to “inspect” what they were doing aboard their boats.

Well, there are a couple of problems with this. The executive branch can not levy taxes — that’s the job of Congress. And the second problem is that Congress never passed a law authorizing the executive branch to do this.

This is one of many, many, many examples. The executive bans bump stocks or pistol braces, suddenly making thousands or hundreds of thousands of Americans criminals. But Congress never passed such a law. Chevron would have all courts simply defer to the alphabet agency making the rule — without hearing the case. You know — like the Founder’s complaint “For depriving us in many cases, of the benefits of Trial by Jury:”?

Chevron deference was allowing rogue executive branch agencies to levy taxes, deny jury trials, and create rules that carried the force of law (effectively create laws) without the involvement of Congress and without the consent of the people (sound familiar?). And it went on for 40 years.

The reversal of Chevron is a blow to the regulatory state and to the “imperial presidency” which is long overdue. Critics of the ruling could not be more wrong. This is not a power grab by the court of the executive. This is the court saying Congress must do its job and not offload its job to the executive.

The “imperial presidency” is a topic I’ve written about before. This week we had a glaring example of why we should be concerned about it.

President Biden and former President Trump held a debate last Thursday. Biden was clearly “not all there.” He had a cold and his voice was raspy. Yes — he had been traveling recently (sort of). And yes he has a lifelong problem with stuttering. This is the excuse given by him and his supporters. Fine — all true to at least some degree.

I listened to the debate on the radio — uninterrupted and without commentary — and that’s not what I heard. It was clear to me within the first few minutes of the debate that Biden has some serious issues. Cognitive issues. Serious cognitive issues given the office he holds.

Biden couldn’t stay on the topic even for the duration of a single sentence. He would begin talking about one thing and by the end of the sentence he was talking about something else entirely. At one point he began talking about abortion and ended with immigration. He froze at one point and completely lost track of what he was trying to say. I’ve been watching presidential debates since 1980 and I have never seen anything like this. This was perhaps the worst performance in history.

In the wake of the debate, many people (including many Democrats) are rightly asking if Biden should hold the office at all — let alone hold it for another term. It’s impossible to discount the seriousness of the issue given the state of world geopolitics. But the folks who are so concerned might also consider the consequences of vesting this office with so much power and importance.

The “imperial presidency” is and has been an enormous danger from the start and has only gotten worse decade after decade. In the current era, the importance of the office of president in terms of international and military issues can not be realistically diminished. But in other areas (domestic) it can be and should be diminished.

The bad news this July 4th is that the executive branch is headed by a guy who can’t complete a sentence. The good news is that our Supreme Court is not similarly addled and is doing exactly what it was intended to do — hold the other two branches accountable to the Constitution. For that I’m grateful.

The danger to our republic this July 4th is not Donald Trump, it is not Joe Biden, it is not the media, and it is not the vocal and unhinged members of Congress. In a properly functioning republic, as intended by the Founders, those should be of no consequence. The danger to our republic is the fact that the judiciary is the only branch of government familiar with and holding to the Constitution.

Low-information voters aren’t helping.

Gadsden1

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Originally published at https://gadsden1.com on July 5, 2024.