I wasn’t cynical enough about this Supreme Court.
When they accepted Trump’s outlandish appeal over the January 6 prosecution and then sat on it for months, I assumed the delay was the point. I believed that with a Democratic president in office, they’d see the obvious downside of ruling that a president is immune to criminal charges. But I thought their intent was to stall and drag out the process until there was no longer a realistic chance of prosecuting Trump before the election.
I underestimated their depravity.
Their newest ruling, divided exactly down partisan lines, states that a president is immune to prosecution for all “official acts”. In and of itself, this wouldn’t necessarily be outrageous. It makes sense that federal officials shouldn’t face prosecution for performing their duties under the law, the same way that members of Congress can’t be sued for anything they say on the floor.
The massive, frightening problem is that this ruling is sweepingly vague about what does and doesn’t constitute an official act. It seems to suggest that any action taken with the powers of the presidency would count, even if it’s for clearly self-serving or nakedly dictatorial motives. Issued as it was in response to the January 6 prosecution, it implies that even attacking Congress and trying to steal an election is an official act!
For all intents and purposes, this is saying that a president is above the law and can’t be punished for anything he does. That’s not just my opinion. It’s straight from Justice Sonia Sotomayor’s searing dissent:
Justice Sonia Sotomayor made this argument in her sharply worded dissent, which Mark Osler, a University of St. Thomas law professor, called “the most chilling part” of the opinions released today.
Sotomayor wrote that the decision “effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding…. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune…. In every use of official power, the President is now a king above the law.”
Under this court’s logic, Richard Nixon shouldn’t have resigned, because he did nothing that was prosecutable. Concocting a plan to spy on his political rivals and secure reelection is an official act for which a president can’t be charged.
This is the clearest sign you could imagine of the bottomless contempt that the Republican justices have for the rest of us. They’ve granted Biden near-unlimited power – and they weren’t concerned about it, because they believe our side will play by the rules and theirs won’t. They believe that liberals are civil and polite and nice, that we’ll follow the rules even when we don’t have to. Meanwhile, the next Republican president will be freed to abuse his power to its full, terrible extent.
There’s only one possible response: Biden has to call their bluff. This isn’t the time for kindly Uncle Joe, this is the time for Dark Brandon.
One example I thought of would be his student debt forgiveness plan, which has been repeatedly blocked by Republican judges. Biden should announce that the plan is moving forward in its original form, and the courts no longer get a say in it. What’s anyone going to do about it? He’s immune to consequences for an official act, and if any lesser official faces prosecution for defying the court, he can just pardon them.
Another possibility: The Defense Production Act allows the president to take over civilian businesses for purposes of national security, specifically including energy and infrastructure. He should commandeer fossil fuel companies and have them start making windmills, solar panels and geothermal power – a WW2-scale mobilization to reorient the American economy toward a green transition. The Inflation Reduction Act is good, but this would be better.
One more obvious move, one that was even floated during the trial itself, would be for Biden to declare his political rivals “enemy combatants” engaged in terrorism, and have the military whisk them away to Guantanamo Bay, beyond the reach of the law, where they can be imprisoned indefinitely without a trial. He should do this to all the Supreme Court justices who voted for this decision and then appoint their replacements. It would be a fitting taste of the medicine they sought to give to others but never expected to take themselves.
These suggestions sound outlandish, and maybe they are. But it’s a long, frustrating pattern in American politics that the progressive left only cares about the moral high ground, while the religious right cares about power. They ask what they can get away with and who’s going to stop them – and if the answer is no one, they have no hesitation in brushing aside any rule that stands between them and what they want. That’s why we lose more often than we win.
We need to fight as dirty as them. Playing by the rules when your opponent doesn’t amounts to unilateral disarmament. The Supreme Court has ruled, almost literally, that when the president does it, that means it’s not illegal. They’ve handed our side a weapon, trusting that we won’t use it against them. Biden has to make them regret it.




