Harvard Law School professor Laurence Tribe was direct on MSNBC last Monday night. “Constitutional law was rocked to its very basis,” Tribe told Lawrence O’Donnell. “The Supreme Court of the United States (SCOTUS) turned the Constitution upside down in a very profound sense.”
With the recent passage of the 248th birthday of our country on July 4, consider that at no time in our history — from the founders to modern times — has anyone ever thought it necessary to do what SCOTUS did last week.
Emil Guillermo
You’ve heard of a demi-god. Now SCOTUS has given our democracy what I’d call a demi-king.
It’s an untouchable president who can do no wrong and fear no consequences. More than a president. Not quite a king. But king-like Potentially disastrous. A demi-king.
And, of course, the case involves the former disruptor-in-chief.
In Trump v. United States, six conservative justices enabled the 45th president once again to change our country’s constitutional norms.
This time, Trump won near absolute immunity for his alleged criminal actions connected to the insurrection of Jan. 6, and possibly the two other criminal cases he faces.
To understand the broader significance of the court decision, forget about the oft cited example of a president sending in Seal Team 6 to assassinate a political opponent.
Could a president do that? Under this new ruling, yes, but some say that’s rather hyperbolic. So, take it down a few notches and consider this rather pedestrian hypothetical.
Say you’re an Asian American activist, working to stave off the right-wing attempt to end birthright citizenship under the 14th Amendment and United States v. Wong Kim Ark (considered a priority in that Republican blueprint “Project 2025”).
And say you’re active to the point of annoyance that you’re considered an “enemy,” and targeted by the 47th president (whoever that might be, perhaps Trump).
Last Monday’s 6-3 SCOTUS decision allows the president to order the FBI to background check you, harass you, and put you under constant surveillance.
Invasion of privacy? Not after Trump v. U.S.
The ruling in Trump allows a president to engage in any activity and have near-absolute immunity from prosecution, so long as it’s an “official action.”
It’s so loosely defined, it could pertain to just about anything connected to the president.
What about the phrase, “no man is above the law?”
That’s still true, but with the shocking new exception. A president, in his official capacity, is above you, me, above it all.
Officially.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Justice Sonia Sotomayor wrote in her dissent. “It makes a mockery of the principle, foundational to our Constitution and system of Government that no man is above the law.”
Sotomayor said the court’s majority relied on its “own misguided wisdom about the need for ‘bold and unhesitating action’ by the President and gave former President Trump all the immunity he asked for and more.”
It’s the political high court, where two sitting judges (Thomas and Alito) should have recused themselves for political activities of their spouses. Maybe the court should wear red robes instead of black?
It immediately called into question the Jan. 6 election interference case against Trump in D.C., which will now be sent back to the lower court to see what’s prosecutable under the new standard.
It may even impact Trump’s 34-count conviction in the Manhattan state court. Late Monday, Trump lawyers didn’t wait to use the new ruling to challenge the outcomes in that case.
Sotomayor said the troubling majority decision was not based on law or history and effectively creates a “law free zone around the President.”
She described the majority decision as “a loaded weapon for any President that wishes to place his own interests, his own political survival or his own financial gain, above the interests of the Nation.”
Sound like some former president we all know?
“The damage has been done,” Sotomayor said in her opinion’s closing graphs. “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
She ended her opinion: “With fear for our democracy, I dissent.”
The law will impact all of us.
But Neal Katyal, a former acting solicitor general during the Obama years and a professor of national security law at Georgetown University Law Center, compared this bad law with another bad law that was racist toward Asian Americans.
When the Japanese American Internment Camp case was heard, the dissent was written by Justice Robert Jackson in 1944.
Jackson’s dissent then was as loud as Sotomayor today. “He dissented saying, look, the power the majority is going to give here to the president is going to lie around like a loaded weapon,” Katyal told MSNBC. Jackson’s metaphor echoed in Sotomayor’s opinion.
The loaded weapon was going to be there for some other president to pick up and use in some horrendous way, Katyal said. “And I fear exactly that about this decision. This is not just about Donald Trump.”
The majority opinion went right to the core of “the most fundamental thing we have as Americans which is life under the rule of law, the idea that no person is above the law, the idea that a president can’t act exogenous to law, that he’s constrained by the law.”
Katyal was hopeful the law wouldn’t last. “I don’t think that we will have five or six justices in the future who can sign on to what is basically nonsense. It’s crucial. It’s not America, and it shouldn’t survive the test of time.”
Pretty Optimistic. But for now, as America recently turned 248, SCOTUS has given our democracy something no patriot could have imagined. A demi-king.
Emil Guillermo is a journalist, commentator, and a former adjunct professor. He writes for the Asian American Legal Defense and Education Fund. You can follow him at www.amok.com.
