SCOTUS' Presidential Immunity Ruling Punches a Hole Through Democrat's Favorite Excuse to Do Nothing

(AP Photo/J. Scott Applewhite via The Orange County Register)

In case you weren’t already aware, the Supreme Court recently ruled on Trump v. United States (the case charging Trump for his attempts to overturn the 2020 election). Trump’s team had argued that he had absolute immunity for any official acts as president, while the government argued that he had no such immunity. The majority opinion, written by Chief Justice Roberts, landed in between, stating that “the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority” and “at least presumptive[]” immunity for all official acts. Roberts elaborates:

At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754.

I have to agree with much of the chattering class here that this ruling is Not Good. Presidents have long enjoyed a sort of de facto immunity (consider how many charges Reagan faced for Iran-Contra or that George W. Bush faced for… everything). Codifying it like this is not a positive development. Given the actions of American presidents current and past, the thought that they might be “apprehensive that criminal penalties may befall” them and the prospect of “prosecutions of ex-Presidents… becom[ing] routine” strike me as appealing, rather than something to avoid. But that’s one reason I’ll probably never be on the Supreme Court.

Still, this is what the court ruled. And much as we may dislike it, I can think of one interesting effect of this ruling: it punches a huge hole in one of the Democrats’ favorite excuses to do nothing. When a Democratic president fails to deliver results, the typical line is that it’s someone else’s fault. Don’t think the Affordable Care Act went far enough? Don’t blame Obama, blame Congress. Mad that Biden hasn’t erased your student loan debt? He tried, blame the Supreme Court. These excuses are already unconvincing, if one really wants to get into the details. But this ruling makes them even flimsier.

Faced with crises like climate change and runaway inequality, the president could just… do something. Don’t wait on Congress, where good ideas go to die. Don’t let the courts get in your way. Just act. The Supreme Court just said that you’re permanently and absolutely immune from prosecution for any acts that fall within the core and exclusive powers of the presidency, which would include orders as Commander-in-Chief of the military. Even when we get outside of those core, exclusive powers, you still enjoy at least presumptive immunity for all official acts. Seems like something to take advantage of!

Say you, the president, do something your opponents don’t like. What are they going to do? Impeach you? As long as you’ve got 34 senators in your corner, impeachment means nothing. The last president who got impeached is currently leading in the polls for this November’s election. What if the courts block you? Ignore them—it’s been done before. Judicial review isn’t actually in the constitution anywhere. 

Or, hey, if climate change and economic exploitation don’t strike you as urgent enough to merit this approach, how about Saving Democracy? We keep hearing that democracy is on the brink, that if this election goes the wrong way we could plunge into fascism. I’ve made it clear I think this is overblown. But if you don’t, what excuse can you make for Biden not to take full advantage of the power the Supreme Court just handed him? That it would set a bad precedent? The whole reason Trump is supposed to be so scary is that he doesn't care about precedents! We’re already hearing about how, should he win again, he’s sure to abuse his authority even more with the license the Supreme Court has given him. 

So what else is there? The concern that the voters won’t like it? I have a feeling that if the president, say, unilaterally issued a new round of relief checks, they might find it in their hearts to forgive that abuse of executive authority. Aside from that, the only reason to hold back is for fear of provoking an actual coup. That’s something to consider, but it would still seem to allow for a pretty substantial degree of latitude. 

The president enjoys a pretty sweeping set of emergency powers he can invoke at any time (Trump did so to redirect funding to his border wall). The fact Biden hasn’t taken greater advantage of these already is indefensible, but now there’s even less excuse. If all of this sounds unprecedented, well, I was under the impression we were living through unprecedented times. So, seriously, put up or shut up.