Ok, everybody had their fun saying Biden should just disappear his political enemies because it’s allowed now. It’s a new day, and those jokes are all old now, and also they’re cynical and stupid and counterproductive.
Democracy is on the ballot. Stop fucking acting like it’s already gone.
Because if you and enough people decide it’s already gone, it is. It’s like watching Peter Pan where you, the audience, have to clap and say you believe in fairies for them to exist, except it’s real.
My concern is this: if Roberts is willing to do this, we have to consider that he's willing to invalidate election results that support Biden.
Maybe he is and maybe he isn't. But the risk is enough that I think we have to find any way to reform the court before the election.
Well, SCOTUS just gave Biden the tools.
EO that says: 4 new seats. Recess appointment 4 justices in. Hope that Congress is too broken to stop when they reconvene.
But of course, that means not clapping for the fairy. At least for a little while.
It’s important to note that this would both backfire electorally and also not work practically. There’s more to seating some more justices than just Biden not getting prosecuted for doing it illegally after he leaves office.
Right! Biden is like “there’s four new justices now” and the court is like “lol no there’s not” and every paper is like “senile Biden believes he’s a king” and the house impeaches him and probably honestly the 25th amendment is invoked.
What Roberts and his court have done is made it very clear that there is no institution we can trust to keep our Democracy for us. All of them can fail if we vote badly. The only thing that will protect us is electing good people to office. All the offices. That's the only actual safeguard.
Well if you control the legislature you can always pass laws that do more to constrain the system and the executive.
So if you want "more" then the next step is still the same. Pass better laws.
You need control of government, and the ability to govern. Winning elections is the biggest chunk of this. Not everything on its own, but the big piece.
Step 1, win elections. Step 2, keep winning them until the GOP is forced to change their behavior. Step 3, fix the laws so they actually work to constrain the executive.
I am definitely not on board with "abuse executive power for as long as we have the executive." That's a bad plan.
How about
Step 1: abuse the executive power, and if that would lose you elections,
Step 2: suspend elections, and if people have a problem with that,
Step 3: military force
Its foolproof.
It’s a fair warning. Especially to the Good Guys. Though perhaps not inevitable.
The question posed (eg Drezner’s substack) is what about if the Bad Guys did it and it didn’t lose them elections.
Like, DACA was a novel use of executive power, I'm not saying that it's per se a bad idea. It's just a bad idea to declare that there are four new SCOTUS justices now.
Yeah. I get the slippery slope argument.
(And I’m not disagreeing with Fig or others in this thread just trying to feel around for what we’re saying and testing arguments).
But I don’t think all actions are equal and I don’t think one always falls down the slope.
My argument is if we’re saying democracy is on the ballot, which it is, we can’t argue the way to save it is to abandon it to claim dictatorial powers before the bad guy can. That’s not a slippery slope argument, that’s starting already at the bottom.
Yeah. I do think the hypothetical yields to more nuanced and complicated decisions once context / severity / extent is applied.
Like. Using the military to force universal voting which (let’s assume) would generate the ‘right’ outcome.
Using Seal Team 6 to force the scotus to reconsider
Their last opinion and do a new one.
Those things are not the way to restore our democracy.
But are their norms or other reaches within this new authority that might be a tactic to ensure Trump didn’t return to power (not sure what those are) and would this fail similar tests?
I do think that some of the proposals for exercises of the new powers granted by the court are going way long on what’s practically allowed to this president now in the short term. The president having after the fact criminal immunity for official acts is bad but it’s not “Biden can do anything now”
yeah, it is genuinely something with fairly limited applications. I do think that the jokes are good to the extent they delegitimize the current Court majority, rather than represent real possibilities.
You mean limited applications for someone like Biden who has rejected using them? Or like Trump who explicitly will? And then applications don’t have to be used to constitute an erosion of norms, democracy etc. it’s a little like Schedule F, you don’t have to fire everyone to have a chilling effect.
I don't think there's much on Biden's list of "I'd do this as president, but I don't want to go to jail."
And to be honest, I don't think there's much on Trump's list there, too. He was already doing it.
The question is also the extent to which this encourages those who would work for him and those who would argue in public for him to go farther than they would to could have before.
I think the real thing that’s opened up here is that Trump would be fully empowered to extend his immunity corruptly to his entire executive branch through use of the pardon power. Unquestionably a core official act, and his motives are off limits in using it.
Amongst a growing list of things that I think is failed in our current Constitutional order is the pardon power.
It’s too powerful. And while in theory it could do some good; I think it’s too dangerous to be allowed to exist (One Ring to Rule them All). I think it should be ended.
Pwn proposed a constitutional amendment that limits a Pres from pardoning anyone in office or their relations. So that doesn’t stop Jimmy from pardoning draft dodgers (well, most of them), but would stop this.
