Jonathan Ladd: The 14th Amendment says if you were involved in an insurrection you can't be president. SCOTUS said they won't allow anyone to enforce that because of reasons they made up. The Constitution doesn't say the president is immune from criminal law. SCOTUS decided he is because of reasons they made up.

The 14th Amendment says if you were involved in an insurrection you can't be president. SCOTUS said they won't allow anyone to enforce that because of reasons they made up. The Constitution doesn't say the president is immune from criminal law. SCOTUS decided he is because of reasons they made up.

What are the words of the Constitution anyway? Why follow that when I could make up something new? bsky.app/profile/jaco...

The Constitution says that in cases of impeachment, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." It does not except the president. But what impeachable offenses aren't covered by the new doctrine of immunity?

At a minimum it seems like Biden should revisit every decision on e.g. loan forgiveness that any judge has blocked, and just say, nice judgement you made there but this is an official act so I can do it anyway.

How is ignoring the Supreme Court not an official act?

Sure Biden is safe but his order is not. He can ignore the court as presidents have done before so nothing new there but the danger is that a new president might say "that was illegal and now anyone who benefited from that illegal act it goes back to status quo ante." Is that an ex post facto law?

I mean... the ruling very explicitly did not rule on the transfer of the orders... If I tell my Treasury Sec to eliminate all student loan debt in defiance of Supreme Court orders, it's not clear at all that my immunity wouldn't transfer. The court implies it does.

Presidents don't actually DO the work, themselves. They tell other people to do the work. The work getting done is an extension of their will, however, as the court sees it. While they left the opening there... This court will never allow Bill Barr to be prosecuted for carrying out orders

But not because of presidential immunity. And anything Barr did in response to Trump orders is still considered okay by SCOTUS? Is that how it would go?

Interesting. I'm less certain and I don't think the court addressed that did they? I guess if they keep going down the road of "unitary executive" they might get there. But "just following orders" seems a bit thin. Even soldiers can be prosecuted and "orders" is generally not protective.

Not sure what you mean. Transfer to Treasury Sec? You just pardon him/her. You remain immune forever. But the order can be rescinded no? Court could say "that was illegal and invalid." Won't matter until someone calls it like a new president but your student loan debt could be restored.

Assuming people go along with him, the order is safe for his term in office. Presidents revising each others' kingly orders will just produce chaos, though.

Yes that's true. Interesting point about the chaos reversing orders would produce. My sense is that this court generates much chaos, but the 6 are just too thick to see when it is coming. I mean didn't they just violate their own Loper Bright decision and now allow appeals from earlier rules?

Chaos can be ignored by those who insist on principle come what may. They're like adolescents playing with libertarian philosophy. Who cares, when you're right?

That's definitely not a current concern! For either candidate, and therefore the nation at large for at least the next 5 years at minimum

A sensible person will worry about more than the next five years. Biden is sensible. The "Justices" are not. More to the point, Trump is not.

The more such orders Biden issues the more he can run on protecting and extending them. He should just go for it.

He can also order the DOJ to enforce his orders by jailing governors that refuse to comply. It's an official act.

Which orders aren’t being obeyed by governors?

The ones he would issue in the hypothetical you created?

Loan forgiveness has nothing to do with criminal liability.

Ignoring Supreme Court decisions does.

Is there actually a criminal penalty for ignoring a Supreme Court ruling? I was under the impression that there was nothing easy stopping a president from pulling an Andrew a Jackson and saying “Let them enforce it”

“Easy” should be “really”

Isn’t there presumably a database that houses all federal student loan information? What prevents a president from ordering those servers to be permanently incapacitated after today’s ruling? I mean I know it’s nuts but that’s where we’re at.

If others will go along with him. It's like violating precedent. Any president can do that. The result will be chaos instead of the rule of law.

this was exactly my thought, but they'll find some way to weasel their way around it and say "oh, we were still right, but this doesn't count because [bullshit reasoning]" modern conservatives have never had a problem with being painfully obvious in their inconsistency and hypocrisy

but... the issue wasn't that Biden would've been criminally prosecuted. If the loan forgiveness is found to not be legal, the agencies won't execute it. Biden would have to, like, threaten the agency heads with physical violence to get them to execute illegal orders.

You mean commit a criminal act to get the agency to do what he wants (actually he could just fire them and replace w who will do what he wants). Court says it's illegal? Biden says, tough. Arrest me.

The problem is that an official act declared illegal or unconstitutional even if Biden forced it through could be reversed by next president. Those who got loan forgiveness "illegally" could have the loan restored and would be prosecuted if they didn't pay. Biden would be safe but not his order

Yes that's what I mean. Presumably we're not cool with presidents threatening civil servants to get them to do illegal things. He could replace agency leadership with toadies right now.

Forcing Rand Paul to get dozens of vaccines all at once administered by Dr Fauci on C-Span live is now an Official Act. #OfficialAct #ExecutiveOrders

That's a good one. Court can't take that act back as they can't "unvaccinated" Paul and Biden can't be prosecuted.

In Germany, organizations that directly attack the constitutional order are banned. The Federalist Society is exactly that kind of organization.

Maybe the President should lock up the members of the Federalist Society. Biden has those powers, right?

True. But there's a difference between Biden and Trump.

There certainly is.

I'm *super* glad that they are refraining from judicial activism and just calling balls and strikes by [checks notes] installing the President as a dictator.

So according to SCOTUS a sitting president can do anything and also there are 2 months between election and inauguration, which presents a sort of one man purge situation

Bingo

Just waiting for the NYT editorial to drop proclaiming that the Gang of 6 need to resign, for the good of the country.

When pigs fly...

Today's opinion is as glaring an example of "originalism when we feel like it" as I can think of. Akhil Amar--himself an originalist--will be doing a podcast on the opinion in the coming days. It will be scathing. (He already did a lot of commentary in the leadup.) akhilamar.com/podcast-2/

Amarica's Constitutionakhilamar.com In this new podcast, Professor Amar offers weekly in-depth discussions on the most urgent and fascinating constitutional issues of our day. He is joined by host Andy Lipka and frequent guests: other t...

www.theatlantic.com/politics/arc...

Something Has Gone Deeply Wrong at the Supreme Courtwww.theatlantic.com Jurists who preach fidelity to the Constitution are making decisions that flatly contradict our founding document’s text and ideals.

Sounds great. I don't have a well-laid-out constitutional philosophy, but to the extent that I do it tends to be "liberal originalist" as well. So I often like what Amar has to say.

Time for Biden to "officially" remove Roberts, Alito, and Thomas from the bench. Apparently, he can do anything he wants.

Deeply confusing. 🫤

do you have a take on Stephen L Carter hooking a single line that gives him hope

Trump Won’t Like the Trump Immunity Ruling: Stephen L. Carternews.bloomberglaw.com Anyone who expected the US Supreme Court to give clear guidance on the extent to which former President Donald Trump can be tried (and tried and tried) for the crimes of which he has been accused must...

Post