Links - Absolute Power Does What Again?

WWJ.R.R.TD?

The decision of the Supreme Court in Trump v. United States is now old news. Which means, we now have time to have calmly taken it in for further analysis. And upon further review, the “This is fine.” meme remains apropos.

Cato’s Presidential scholar Gene Healy weighs in first identifying how problematic the ruling was.

The unspoken premise in the majority opinion is that where there’s a policy need, there’s a constitutional privilege. Don’t sweat the details: if a particular immunity “is required to safeguard the independence and effective functioning of the Executive Branch,” then, as the old Prego ad had it, “It’s in there!”

He links to this very helpful decision tree from Just Security:

He concludes with a very ominous note:

How much did the possibility of criminal prosecution for official and quasi-official acts restrain Trump from making good on such threats last time around? Thanks to Roberts—whom no one can accuse of being “unduly cautious in the discharge of his official duties”—we may get to find out.

Next up is Mike Huemer who reasons through why this is a bad decision.

The majority talked about how this Presidential immunity doctrine was needed to preserve the separation of powers as well as to preserve “liberty”. Congratulations: you’ve now achieved a level of doublespeak comparable to the Woke DEI ideologues. If giving the President the power to assassinate his opponents, etc., counts as “protecting liberty”, then we really are living in the world of 1984. It is hard to think of anything less democratic or more obviously incompatible with everything the Constitution ever stood for.

Once upon a time in a land called America, the President of the United States was held to standards in keeping with the U.S. Constitution. His powers were limited. And he would be held accountable for acts criminal in nature. The creative minds on the Supreme Court have rendered that place but a faint memory.

I don’t think I’m exaggerating here even if we don’t soon see more and more blatant acts of Presidential malfeasance. The die is cast. This opens up the possibility of bad behavior creep at the least, which itself can ratchet up to levels quite bad but imperceptible except in stark comparison to a distant past.

Perhaps I’m being hyperbolic. Maybe there is nothing to worry about.

Well, last we have Jeffrey Miron and Jacob Winter giving us a little reminder about how the government recently exerted great pressure on private actors to censor and change their speech.

Distressingly, many on the left and right want to regulate social media, claiming these outlets inappropriately promote or suppress certain viewpoints. Social media outlets inevitably make choices about whether, how much, and what to promote or suppress on their sites, and their decisions cannot possibly be neutral. 

That, however, is the nature of free speech. The defense of the First Amendment is not that all speech is good, correct, or without harmful consequences. Instead, the defense is that controlling speech makes society worse by preventing discussion, expression of different viewpoints, and the vigorous debates that characterize a free society. 

The people in government tend to want control over things, which is an otherwise natural human desire. The problem is three fold: they don’t have the right in most cases to exercise control, they don’t have the knowledge, willingness, or ability to have that control be for the ultimate good, and they don’t have a natural desire for that control to be limited.

SCOTUS has opened a door to a world with much less restraint on the executive branch to do as it wishes.

P.S. I believe the underlying motive of the Robert’s Court has been to make, assume, and force Congress to do its job. That is the only through line I can find from the ACA ruling (effectively upholding Obamacare), to Dobbs (rejecting Roe v Wade, et al.), to overturning Chevron deference, to now granting POTUS immunity for official acts. I personally disagree, agree, agree, and disagree respectively with those decisions. Regardless of my educated but admittedly limited understanding and judgement of the law, this theory is the only way I can find consistency.