Ongoing discussion of SCOTUS cases (9 Viewers)

[MT15]

With the increased scrutiny due to recent revelations in the press I thought maybe we can use a SCOTUS thread. We can discuss the impending Senate investigation and the legislation proposed today by Murkowski and King in the Senate that will formalize ethical guidelines.

We can also use this thread to highlight cases that possibly don’t deserve their own thread, like the following.

I saw this case today, and I cannot believe the US Government is allowed to do this. Unreasonable search and seizure? The examples he gives in the rest of the thread are just sickening:

 

[superchuck500]

Yeah, agencies running roughshod with impunity is a good way to deal with the ineptitude of congress.

Eliminating Chevron now lets lower federal courts have the flexibility to deal with faulty or onerous agency regulations. The case at hand could have been dealt with simply, with a judge saying you can have monitors on boats but the boats aren’t paying for them. A little pragmatism. Chevron was too much of a restriction.

The agencies and Congress will figure it out.

I don't think you understand what Chevron was and how it supported the regulatory system. It was a standard of review of agency action, it was not impunity. Agency regulations have been often struck down in the Chevon-guided legal landscape for exceeding their authority.

The question isn't whether district courts have authority - they have always had authority. The question is whether the district court can functionally substitute its own judgment for that of the agency in areas of agency authority bestowed by Congress to the executive branch. Chevron held that the standard of review by the district court is one of deference to the agency's view of what its authorities mean in the realm of subject matter Congress vested the agency with authority to act.

Deference is not acquiescence - and it led to consistency because while there are 677 district judges in the United States with varying views (some of which are just plainly unlawful), the agencies are singular and nationwide in their exercise of their authority. But those 677 judges don't actually decide results - the final (most of the time) results will come from the 13 circuit courts.

So in removing deference to the agency, the decision has empowered the 677 district judges to disagree with the agencies on equal ground, and leaving it for the appeals courts to sort out. It will be much easier to enjoin agency action from proceeding during the litigation. There will be substantially (perhaps even dramatically) more litigation and time lost to litigation - but in the end, the agency's action will still have to reconciled with its authority . . . and, generally, that was always the case.

It's rather striking that the same Court that took this view about narrowing the executive branch's prerogative with acting in accordance with the mission Congress bestowed to it through enacted legislation would, the next day, take such a broad view of the power of the presidency. But here we are.

 

[superchuck500]

The problem is that it may help Biden, but with this ruling, I think it is not a question of IF a president will have an opponent assassinated, but WHEN. Trump is the immediate danger, but there will be others now that the Pandora’s box is open. Someone will test it. They could test it after impeachment is OBE.

I keep seeing this slippery-slope hypothetical. Under what presidential authority can the president assassinate an opponent?

The decision held that "core constitutional powers" are absolutely immune, so let's start there. Where does it fit into the Article II framework? The decision then held that action generally within the sphere of presidential powers shall be presumed immune but the prosecution may rebut that presumption. But I'm still stuck with the same question: where is it in the president's constitutional authority to assassinate an opponent?

 

[DaveXA]

I don't think you understand what Chevron was and how it supported the regulatory system. It was a standard of review of agency action, it was not impunity. Agency regulations have been often struck down in the Chevon-guided legal landscape for exceeding their authority.

The question isn't whether district courts have authority - they have always had authority. The question is whether the district court can functionally substitute its own judgment for that of the agency in areas of agency authority bestowed by Congress to the executive branch. Chevron held that the standard of review by the district court is one of deference to the agency's view of what it's authorities mean in the realm of subject matter Congress vested the agency with authority to act.

Deference is not acquiescence - and it led to consistency because while there are 677 district judges in the United States with varying views (some of which are just plainly unlawful), the agencies are singular and nationwide in their exercise of their authority. But those 677 judges don't actually decide results - the final (most of the time) results will come from the 13 circuit courts.

So in removing deference to the agency, the decision has empowered the 677 district judges to disagree with the agencies on equal ground, and leaving it for the appeals courts to sort out. It will be much easier to enjoin agency action from proceeding during the litigation. There will be substantially (perhaps even dramatically) more litigation and time lost to litigation - but in the end, the agency's action will still have to reconciled with its authority . . . and, generally, that was always the case.

It's rather striking that the same Court that took this view about narrowing the executive branch's prerogative with acting in accordance with the mission Congress bestowed to it through enacted legislation would, the next day, take such a broad view of the power of the presidency. But here we are.

Yeah, I'm still trying to digest all of this and things are changing too fast to keep up now. Some of what I'm reading and seeing is pretty shocking from the Court.

I mean, the immunity decision sure seems like it would have allowed Nixon to do what he did without consequences and he more than likely stays in office instead of being forced out.

I really don't understand the reasoning behind the Court's decisions.

Edit: not to say that what he did was within the scope of his powers granted by the Constitution, but the court decision did outline that the President's motives within his official acts couldn't be questioned. I don't recall the exact wording.

 

[superchuck500]

Yeah, I'm still trying to digest all of this and things are changing too fast to keep up now. Some of what I'm reading and seeing is pretty shocking from the Court.

I mean, the immunity decision sure seems like it would have allowed Nixon to do what he did without consequences and he more than likely stays in office instead of being forced out.

I really don't understand the reasoning behind the Court's decisions.

I disagree that the decision would have rendered Nixon immune from criminal proseuction. Nixon authorized a program of illegal wiretapping and other "dirty tricks" by operatives of his presidential campaign. He then personally approved cash payments to them to keep quiet and refuse to cooperate with the law enforcement investigation. None of that flows from any constitutional authority of the president, nor does it relate to any official duties.

Of course, Nixon wasn't prosecuted and I don't think the specter of criminal prosecution is what built the momentum of impeachment to the point where he was left with no option. The public was outraged by the credible evidence of his role in the scheme. As that outrage grew and the story became more and more credible, the push on Capitol Hill to impeach him became so strong that in the days before he resigned, he counted only five to seven senators that he knew wouldn't impeach him.

Sure, there were many who wanted him behind bars and who were disappointed with Ford's pardon but I don't think the prosecution question played a significant role in the events. Immunity is a question of prosecution, it doesn't mean that crimes didn't happen. And it doesn't mean that "high crimes and misdemeanors" didn't happen.

 

[MT15]

Would some one please help me out here. I don't see and don't know what Orin Kerr is referring to with this:

Secretary Cohen relayed a conversation with Trump, and had Trump correctly using “whom”. Various people pointed out that Trump would never be able to correctly use the word. Here is the conversation:

 

[DaveXA]

I disagree that the decision would have rendered Nixon immune from criminal proseuction. Nixon authorized a program of illegal wiretapping and other "dirty tricks" by operatives of his presidential campaign. He then personally approved cash payments to them to keep quiet and refuse to cooperate with the law enforcement investigation. None of that flows from any constitutional authority of the president, nor does it relate to any official duties.

Of course, Nixon wasn't prosecuted and I don't think the specter of criminal prosecution is what built the momentum of impeachment to the point where he was left with no option. The public was outraged by the credible evidence of his role in the scheme. As that outrage grew and the story became more and more credible, the push on Capitol Hill to impeach him became so strong that in the days before he resigned, he counted only five to seven senators that he knew wouldn't impeach him.

Sure, there were many who wanted him behind bars and who were disappointed with Ford's pardon but I don't think the prosecution question played a significant role in the events. Immunity is a question of prosecution, it doesn't mean that crimes didn't happen. And it doesn't mean that "high crimes and misdemeanors" didn't happen.

Thanks, I'm not sure what to make of the decision. My first response to the decision was that immunity for official acts makes sense if they're within the contours laid out in the Constitution, but it seems like a lot of things could be questionable as to whether they fall under official acts. To me, an official act by definition can't be illegal because the intent expressed in Constitution certainly would be that illegal acts would by definition not be official acts because conventional thinking would be official and illegal are incompatible. But I don't even know anymore.

 

[Incumbent]

Possible scenario that has protection now and wouldn't have then:

"I declare NBC news the enemy of the people and a imminent threat to national security. If my official role as president I issue an executive order to have the federal agents I hand picked round up everyone at NBC news and have them summarily executed without trial."

That's clearly illegal and no president would dare try it, because they know they wouldn't be immune just because they did it in a way that gives it cover of being an official act.

I know, I know, no president, not even Trump, would actually try that because they know they wouldn't get away with it and even if he did, no one would carry out those orders.

Except you're wrong on both counts. Number one, Trump is absolutely convinced that this means he can do whatever he wants and there isn't an advisor on this planet that would convince him otherwise. I doubt that an advisor that would want to advise him not to would be able to get anywhere near Trump because of point number two.

Number two, there are a thousands of people that would be willing to carry out an order like that for Trump and those are exactly the kind of people that Trump is going to put in place if he wins.

This is a lot more dangerous than some people are willing to admit. The Supreme Court didn't just simply reinforce immunity, they've restated it a way that makes a president for anything they do under the cover of it being an official act, no matter how intentionally horrific or anti-Constiutional it is. Just got to do it as an official act and you're all good, baby.

I fear too many are being lulled by American exceptionalism into believing that Trump will still be limited in the damage he can do, and everything will eventually work out in favor of democracy. It won't. Guardrails are crumbling right before our eyes. We're watching this all unfold in real time.

Trump has already threatened unfriendly media and opposition. SCOTUS has provided him a broader space to work. Years of planning and action by conservative groups have reshaped the judiciary, gerrymandered districts, and created the conditions for rightwing radicalism to grow.

Trump has learned his lesson from his previous term and he won't be surrounding himself with institutionalists. It will be sycophants who are the real masters of his vision for America, who not only won't stand in his way, but will be working to carry out the assault on our democracy and institutions.

Their assault on the entire system of federal government will begin immediately. They have told us that. If I was a federal employee, and Trump wins, I wouldn't expect to have a job longterm. They are telling us they plan to overhaul federal employment with the end goal of dismantling regulations, oversight, and protections (because this is what American oligarchs want.)

This isn't a normal election and it's not really about old guys doing old guy things. It's about the drastic differences between the competing administrations and their visions for the future of our country, and how that will impact millions of Americans and global politics. Everything as we know it hangs in the balance. This couldn't be more dire.

 

[Bayouboy]

This is such a dangerous thing to do. If the wrong person takes office, you could have a disaster on your hands....

Imagine a sitting President barking out illegal orders to his staff. Office acts where he/she is now immune. His subordinates execute his crimes. They are subject to the law and can be tried and sent to prison. BUT, the same President can then pardon the conspirators that executed his crimes.

John Dean was on last night and said if this ruling was in effect during the Watergate affair, Nixon would not have resigned. Makes sense. Funny enough, Nixon got off with a pardon, but many of his staff served prison time. Some several years for their part in Watergate.

I just wish they would clear the Orange messiah of all wrongdoing.....but don't put all future Presidents above the law!!!

 

[MT15]

I keep seeing this slippery-slope hypothetical. Under what presidential authority can the president assassinate an opponent?

The decision held that "core constitutional powers" are absolutely immune, so let's start there. Where does it fit into the Article II framework? The decision then held that action generally within the sphere of presidential powers shall be presumed immune but the prosecution may rebut that presumption. But I'm still stuck with the same question: where is it in the president's constitutional authority to assassinate an opponent?

It was apparently an official act to assassinate a US citizen designated a terrorist (not on US soil). And that was before this decision, which seems to broaden immunity. So that’s not terribly comforting for me, who was not entirely comfortable with the assassination mentioned.

From the opinions I am seeing from some lawyers the majority decision is so broad that if the president thinks it’s an official act then it basically is. And the response to the idea that people wouldn’t obey an illegal order because they wouldn’t have immunity ignores some crucial parts of the decision. The president can just pardon anyone carrying out this illegal act. And people (people who are smart, people who are educated) have been falling all over themselves to go along with every batshit insane thing Trump says. Absolute power corrupts absolutely is a truism for a reason.

I don’t want to this opinion to be as bad as I am seeing it. But it seems to my untrained eyes to have been carefully crafted to absolve Trump of some really crazy actions with some of the arcane things it specifies. Like intent cannot be considered. Like bribes taken for pardons are A-OK.

Of course I have heard some lawyers like Chuck Rosenberg sound a little more measured. But even he said there were parts of the decision he found troubling.

 

[superchuck500]

This is such a dangerous thing to do. If the wrong person takes office, you could have a disaster on your hands....

Imagine a sitting President barking out illegal orders to his staff. Office acts where he/she is now immune. His subordinates execute his crimes. They are subject to the law and can be tried and sent to prison. BUT, the same President can then pardon the conspirators that executed his crimes.

John Dean was on last night and said if this ruling was in effect during the Watergate affair, Nixon would not have resigned. Makes sense. Funny enough, Nixon got off with a pardon, but many of his staff served prison time. Some several years for their part in Watergate.

I just wish they would clear the Orange messiah of all wrongdoing.....but don't put all future Presidents above the law!!!

I’d like for someone to explain to me how this would have kept Nixon in office. I’m substantially familiar with the history, I’ve been borderline obsessive with it over the years. I have read multiple books about, some more than once.

Obviously John Dean has a unique position on it but that doesn’t mean he’s right.

Nixon resigned because he was on the eve of impeachment - not because he was concerned about being prosecuted.

 

[MT15]

Sadly, I agree with Incumbent here. And I saw a clip of Speaker Johnson this morning gaslighting everyone that nobody who is President or Vice President would ever do anything terrible or illegal in the way that critics of this decision are saying.

I cannot stand that oily liar.

 

[superchuck500]

I’d like for someone to explain to me how this would have kept Nixon in office. I’m substantially familiar with the history, I’ve been borderline obsessive with it over the years. I have read multiple books about, some more than once.

Obviously John Dean has a unique position on it but that doesn’t mean he’s right.

Nixon resigned because he was on the eve of impeachment - not because he was concerned about being prosecuted.

By the way, if you want to read the full, current history on Watergate, Garrett Graff’s 2022 book was a Pulitzer finalist and it’s just outstanding.

It’s also on Audible and the narrator is excellent.

https://www.amazon.com/Watergate-History-Garrett-M-Graff/dp/1982139161?tag=associatessrp-20

Watergate

Check out this great listen on Audible.com. Finalist for the Pulitzer Prize in History NEW YORK TIMES BESTSELLER * “Do we need still another Watergate book? The answer turns out to be yes—this one.” —The Washington Post * “Dazzling.” —The New York Times B...

www.audible.com

 

[SaintRob]

So I'm guessing this would all be legal now for a sitting president. We are in a dangerous place with the latest SCOTUS ruling.

Biden needs to use these comments as a blueprint in the final months of his first term... you know... just in case.

Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals​

Former President Donald J. Trump over the weekend escalated his vows to prosecute his political opponents, circulating posts on his social media website invoking “televised military tribunals” and calling for the jailing of President Biden, Vice President Kamala Harris, Senators Mitch McConnell and Chuck Schumer and former Vice President Mike Pence, among other high-profile politicians.

Mr. Trump, using his account on Truth Social on Sunday, promoted two posts from other users of the site that called for the jailing of his perceived political enemies.

One post that he circulated on Sunday singled out Liz Cheney, the former Wyoming congresswoman who is a Republican critic of Mr. Trump’s, and called for her to be prosecuted by a type of military court reserved for enemy combatants and war criminals.

“Elizabeth Lynne Cheney is guilty of treason,” the post said. “Retruth if you want televised military tribunals.”

A separate post included photos of 15 former and current elected officials that said, in all-capital letters, “they should be going to jail on Monday not Steve Bannon!” Those officials included Mr. Biden, Ms. Harris, Mr. Pence, Mr. Schumer and Mr. McConnell — the top leaders in the Senate — and Representative Nancy Pelosi, the former House speaker.

The list in the second post also had members of the House committee that investigated the Jan. 6, 2021, attack on the Capitol, including Ms. Cheney and the former Illinois congressman Adam Kinzinger, another Republican, and the Democratic Representatives Adam Schiff, Jamie Raskin, Pete Aguilar, Zoe Lofgren and Bennie Thompson, who chaired the committee.

Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals

Former President Donald J. Trump over the weekend escalated his vows to prosecute his political opponents, circulating posts on his

dnyuz.com

 

[MT15]

So I'm guessing this would all be legal now for a sitting president. We are in a dangerous place with the latest SCOTUS ruling.

Biden needs to use these comments as a blueprint in the final months of his first term... you know... just in case.

Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals​

Former President Donald J. Trump over the weekend escalated his vows to prosecute his political opponents, circulating posts on his social media website invoking “televised military tribunals” and calling for the jailing of President Biden, Vice President Kamala Harris, Senators Mitch McConnell and Chuck Schumer and former Vice President Mike Pence, among other high-profile politicians.

Mr. Trump, using his account on Truth Social on Sunday, promoted two posts from other users of the site that called for the jailing of his perceived political enemies.

One post that he circulated on Sunday singled out Liz Cheney, the former Wyoming congresswoman who is a Republican critic of Mr. Trump’s, and called for her to be prosecuted by a type of military court reserved for enemy combatants and war criminals.

“Elizabeth Lynne Cheney is guilty of treason,” the post said. “Retruth if you want televised military tribunals.”

A separate post included photos of 15 former and current elected officials that said, in all-capital letters, “they should be going to jail on Monday not Steve Bannon!” Those officials included Mr. Biden, Ms. Harris, Mr. Pence, Mr. Schumer and Mr. McConnell — the top leaders in the Senate — and Representative Nancy Pelosi, the former House speaker.

The list in the second post also had members of the House committee that investigated the Jan. 6, 2021, attack on the Capitol, including Ms. Cheney and the former Illinois congressman Adam Kinzinger, another Republican, and the Democratic Representatives Adam Schiff, Jamie Raskin, Pete Aguilar, Zoe Lofgren and Bennie Thompson, who chaired the committee.

Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals

Former President Donald J. Trump over the weekend escalated his vows to prosecute his political opponents, circulating posts on his

dnyuz.com

The news media has to rise to this moment. The majority of people in this country would realize how crazy Trump sounds if the news media will call attention to it. I’m baffled why they don’t.

 

[Lapaz]

I keep seeing this slippery-slope hypothetical. Under what presidential authority can the president assassinate an opponent?

The decision held that "core constitutional powers" are absolutely immune, so let's start there. Where does it fit into the Article II framework? The decision then held that action generally within the sphere of presidential powers shall be presumed immune but the prosecution may rebut that presumption. But I'm still stuck with the same question: where is it in the president's constitutional authority to assassinate an opponent?

I contend that Article II, Section 2, Clause 1 "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States", plus Article II, Section 1 "The executive Power shall be vested in a President of the United States of America." is enough, because the Executive branch determines threats. I hope you're right, because those were already there before this ruling, but the additional cover this ruling provides by disallowing the review of motive of official acts seems destined to lead to such an abuse. This article discusses some opinions that dealt with executive power exercised by Lincoln, which I think have been strengthened by this ruling:

https://constitution.congress.gov/browse/essay/artII-S2-C1-1-2/ALDE_00013464/

 

[Lapaz]

I’d like for someone to explain to me how this would have kept Nixon in office. I’m substantially familiar with the history, I’ve been borderline obsessive with it over the years. I have read multiple books about, some more than once.

Obviously John Dean has a unique position on it but that doesn’t mean he’s right.

Nixon resigned because he was on the eve of impeachment - not because he was concerned about being prosecuted.

I think Dean believes Nixon wouldn't have resigned if he faced today's congress, which would probably not impeach him. Congress was much more bi-partisan in the 70s, but with today's partisanship, impeachment is probably never going to happen. Wiretapping congress was bad, but attempting a coup is worse, yet Trump still didn't get removed. Second, I suspect Dean is leaning on the presumptive immunity portion of the ruling, and there may be other ways to stretch the definition of core official acts, such as via espionage investigations that are Executive Branch duties. If the congress didn't impeach, I think this ruling would've given Nixon a lot more cover to fight any conviction.

 

[superchuck500]

I contend that Article II, Section 2, Clause 1 "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States", plus Article II, Section 1 "The executive Power shall be vested in a President of the United States of America." is enough, because the Executive branch determines threats. I hope you're right, because those were already there before this ruling, but the additional cover this ruling provides by disallowing the review of motive of official acts seems destined to lead to such an abuse. This article discusses some opinions that dealt with executive power exercised by Lincoln, which I think have been strengthened by this ruling:

https://constitution.congress.gov/browse/essay/artII-S2-C1-1-2/ALDE_00013464/

I respectfully disagree that the cited language vests the president with authority to assassinate a political rival.

 

[Lapaz]

In no reality or alternate reality is Biden having Trump assassinated. That's not who or who Biden is, even if he could get away with it.

Daddy Dick Chaney is another story entirely. The thing is, if Daddy Cheney has Trump sent to pasture, no one will ever know. It'll look like an accident or natural causes that looks entirely like a result of Trump's lifestyle choices and without any evidence of foul play what so ever. Never thought I might be tempted to root for the Penguin, but I never thought we'd be right here were we are.

I never meant that Biden would do it. I said this makes it likely that some president will do it.