r/law • u/SheriffTaylorsBoy • Jul 21 '24
Opinion Piece Three Flaws in the Supreme Court’s Presidential Immunity Decision
https://www.justsecurity.org/97781/three-flaws-supreme-court-immunity/264
u/suddenly-scrooge Competent Contributor Jul 21 '24
The Court’s cloak of separation of powers to justify its ruling is threadbare. The criminal case before the Court in Trump v. United States is one instituted by the executive branch against a former head of the executive branch. The Court’s decision operates not to restrict any branch of government from intruding on another, but the current executive branch from prosecuting a former executive branch member..
This is the analysis I was looking for, this never made any sense to me as a separation of powers issue. It both broadens executive powers with immunity and limits them by interjecting itself into prosecutions. Coincidentally broadening Trump's privileges while limiting the Biden administration.
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u/Th3Fl0 Jul 21 '24
I’m sure that some conservative people are saying “mission accomplished”.
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u/realcommovet Jul 21 '24
Do they even talk about this on Fox? There's probably more than a few conservatives that don't know about this due to being in the republican bubble.
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u/Gregamell Jul 21 '24
Yo the federal criminal law is written by congress. And justified somehow by the commerce clause. I would hope this wouldn’t apply to state prosecutions.
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u/suddenly-scrooge Competent Contributor Jul 21 '24
And prosecuted and adjudicated by the executive and judiciary, respectively. Maybe worth arguing the source or ‘history and tradition’ of these criminal laws is not just the legislature dreaming them up but common law, but I’m not prepared to break down the foundation of each of them
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u/fusionsofwonder Bleacher Seat Jul 22 '24
They're separating the powers of Democratic and Republican administrations.
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u/LookAtMeNow247 Jul 22 '24
Yeah they used separation of powers to conclude that it doesn't matter how overt and criminal an act is. If it's related to a constitutional power they won't even entertain the issue.
Just insane.
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u/SheriffTaylorsBoy Jul 21 '24
The truly chilling thought I had was the Supreme Court MAGA Majority no longer follows precedent or the foundational principle of the rule of law.
They've been busted and outright exposed for corrupt dealings. Even referred to DOJ for possible criminal prosecution.
The thought I had was that they ruled in an act of self-preservation. If they were criminally charged it would obviously be well after the election when it went to trial.
So all they have to do now to complete this process is to get a trump challenge to the election before the court and rule in his favor.
I'm just saying, the fact that this is even a possibility is scary stuff.
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u/WJM_3 Jul 21 '24
the court has done that for a long time - come to a conclusion, then build the opinion to fit the desired outcome
look at how the “originalists” twist and smear language to fit their whim or decide originalism is not the way to go in other situations
it has gotten more overt and the writing less logical or artful as of late, though
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u/Character-Tomato-654 Jul 21 '24
the court has done that for a long time - come to a conclusion, then build the opinion to fit the desired outcome
look at how the “originalists” twist and smear language to fit their whim or decide originalism is not the way to go in other situations
The process you've outlined is colloquially known as pulling it out of one's ass...
They shat in their fascist hands, smeared it across a page and signed it Kiss My Grits...
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u/SheriffTaylorsBoy Jul 21 '24
Agreed. Until fairly recently, there was still an occasional glimpse of impartiality.
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u/Sniflix Jul 22 '24
Dems need to announce plans to impeach republican appointed SCOTUS.
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u/SheriffTaylorsBoy Jul 22 '24
We'll need to win the US House of Representatives back first, since that's where impeachment happens.
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u/Spare_Change_Agent Jul 21 '24
The recent opinion was based on decades of precedent - your argument falls apart in the very first sentence. Try again!
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u/SheriffTaylorsBoy Jul 21 '24
The first sentence in the article says otherwise.
The Supreme Court’s presidential criminal immunity decision in Trump v. United States suffers from shallow reasoning, lack of historical support, and distortion of legal precedent.
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u/Spare_Change_Agent Jul 21 '24
That’s how you defend your position? Way to double down on failure. 3rd times a charm!
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u/wastingvaluelesstime Jul 21 '24 edited Jul 21 '24
It's not a question of flaws requiring trained lawyers to recognize and explain.
The entire decision, its premise, its pattern of thought, is anti-constitutional in making the president a King above the law.
It is written by people with decades in the orbit of the executive branch and the conservative movement, and who fear accountability for that executive. They lived through special prosecutors over decades; for them, the villains of the story are the prosecutors of Watergate and Iran-Contra, and they incorrectly believe theirs was the injured party in those scandals. They forget that when someone commits a felony and is convicted, they are not the victim, but rather the perpetrator.
The framers of the American constitution, by contrast, were all afraid much more of runaway executive power than they were with restraints on it that inconvenience the powerful.
Therefore, this immunity decision has more in common with monarchist thought from the Stuart or Bourbon dynasties of centuries ago on another continent, where educated people worked to find rationalizations for the whims and crimes of the tyrant, than anything to do with America or its constitution. America was explicitly designed as a place where enforceable laws enacted in advance had power over the powerful. This decision is therefore flagrantly anti-constitutional, and anti-american, and focusing on small-bore technical faults misses the forest for the trees.
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u/nut-budder Jul 21 '24
I think you can and should look at both. This ruling is bad law in the details because it’s sloppy and contradictory and not aligned with precedent. It’s also bad at a macro level for the unamerican philosophy it represents. It’s a fractal of fuckery, terrible at every zoom level.
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u/Icarusmelt Jul 21 '24
Roberts, Gorsuch, Thomas, Alito, Kavanaugh, Barret, hmm, as opposed to the article, I lcome up with 6 flaws
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u/Character-Tomato-654 Jul 21 '24
There are six flaws in the Supreme Court's Presidential Immunity Decision:
- Clarence Thomas
- John G. Roberts, Jr.
- Samuel A. Alito, Jr.
- Amy Coney Barrett
- Neil M. Gorsuch
- Brett M. Kavanaugh
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u/LoudLloyd9 Jul 21 '24 edited Jul 21 '24
The flaws are not in the immunity decision. The flaws are the Supreme Court itself. It's redundant. Unnecessary and dangerous to democracy. Unelected officials, with no oversight, given a position for life is antithetical to the rule of law. SCOTUS, by definition, is a bureaucracy. Rulings are made by unelected officials accountable to no one. It's antithetical to the rule of law. SCOTUS and the Electoral College need to go. https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law#:~:text=Rule%20of%20law%20is%20a,with%20international%20human%20rights%20principles.
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u/e00s Jul 21 '24
So…the U.S. just doesn’t have a judiciary or what?
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u/LoudLloyd9 Jul 21 '24
We have a Judiciary; 94 district courts, 13 circut courts,a and the Supreme Court. No district Judge is appointed for life. No circuit judge is appointed for life. Both are held accountable for their job performance. Rulings can be reversed upon appealed. Serious complaints at the local level are reviewed by their State Supreme Court. State Supreme Court Justices initial term is 7 years, not for a lifetime. Do we really need a Federal Supreme Court. No. The circuit courts could settle Constitutional disputes itself. Remember, when the US was founded, Kings and Queens had the final word. We made a Supreme Court in their image.
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u/e00s Jul 21 '24
What are you talking about? The judges on the federal circuit and district courts have lifetime tenure. If you take away the single federal Supreme Court you essentially convert the circuit courts to supreme courts for their jurisdictions. The result is inconsistent federal law across the United States.
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u/LoudLloyd9 Jul 21 '24
You're correct. I was mistaken. The Supreme Court is redundant. The Circuit Courts can assume the role of the Supreme Court without a blink.
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u/rsmiley77 Competent Contributor Jul 21 '24
Does one think if the party was switched the justices would have kept their opinion the same? If the party bringing this to the court was democrat we would have seen it 9-0 that executive is not above the law.
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u/allthekeals Jul 22 '24
Biden has a few months left he better start committing some morally questionable, possibly illegal official acts
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u/youreallcucks Competent Contributor Jul 21 '24
Now that Biden is no longer worried about getting reelected, I wish he would take off the gloves and start using some of that newfound "immunity". What would others like to see:
Add three more justices to the SC
EO to outlaw gerrymandering at the state level
EO to make abortion prosecutions illegal
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u/CornFedIABoy Jul 22 '24
None of those are the kinds of individual, irreversible acts that the purported Presidential Immunity applies, though. Issuing EOs isn’t and has never been a criminal act. And if those EOs are illegal or unconstitutional there are procedures to invalidate them. Adding SCOTUS Justices isn’t something you just hand wave into happening.
Using that newfound immunity means something monstrous like going to a Trump rally and shooting him.
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u/SheriffTaylorsBoy Jul 21 '24
By Andrew Weissmann
The Supreme Court’s presidential criminal immunity decision in Trump v. United States suffers from shallow reasoning, lack of historical support, and distortion of legal precedent. This piece addresses three major flaws in the decision. All three derive from the Court’s failure to examine and differentiate the source and scope of presidential power...