along similar lines, has anyone actually explained *why* the seal team six hypo is ruled out by the majority opinion? all I've seen is right-leaning law profs mocking everyone who raises the issue. but nobody has explained why a president wouldn't be immune for assassinating a rival
Checking on prominent originalists on the other site, I can't find one who has criticized yesterday's anti-textualist immunity opinion. All have tweeted on other topics. Here are the reactions:
Mocks dissent: Barnett
Silence: Baude, Green, McGinnis, Rappaport, Sachs, Whittington
The actual argument is “well they don’t actually give a test in the opinion so who can say” but like “they didn’t affirmatively say you can do it, they just didn’t rule it out” isn’t a big improvement!
This paragraph raises a confusing issue: The absolute immunity applies to the President's "core constitutional powers." That seems to mean those powers Congress cannot regulate by statute. But it remains unsettled where that line is for war powers -- it's unclear if the WPR is constitutional!
The Court seems to buy the unitary executive theory, so it would likely say that the war powers do contain an unregulable core, which precludes prosecutions related to things like the Abbottabad raid. But there may be a domestic vs. foreign distinction on what falls in the core, as Jackson suggested
(As an aside, it would be deeply funny if the emanations and penumbras of the Third Amendment ended up being the reason the President couldn't use SEAL Team Six to assassinate his political rivals -- at least while they're in the US.)
I think there is a way to read the opinion along the lines of “we’re not saying the action has immunity we’re saying there is no way for the presumption that it does to be overcome” which is something the freaks I went to law school with who clerk for these people think is very clever
