This is a respectable opinion piece, but to me it is not a persuasive one.
A more persuasive argument would have more fully thought through the consequences for an opposite majority opinion -- something the Chief Justice's majority opinion did, and the dissents really, did not.
The first thing to point out is that the fact that international law is different fails to be persuasive because there isn't an international constitution. And other countries with constitutions don't have ours. The Court very carefully considered what our constitution says, and how it is structured, and while both dissents see things differently, I think the fact that the president is constitutionally the only branch of government assigned to one person is overwhelmingly important to this case.
The Court's discussion of the problem with presidential motives follows from that. As a singular focus of power, the President is a natural focus of prosecutors, and speculating about presidential motives is one of the biggest problems the Court sees, since motives are so obscure, complicated and multifactorial. This is just the thing partisans -- including prosecutorial partisans -- can and do take advantage of in an enormous number of situations including, in part, the Trump prosecution in this case. It doesn't take any imagination to wonder if a Republican led Department of Justice would file revenge cases against President Biden, since that's just what the Republicans are promising, and already trying to do. The dissents were not troubled by this Hatfields and McCoys scenario, but I certainly am.
Taking motive off the table has its downside, since a guilty mind (called mens rea in the law) is an essential element of criminal behavior. Yes, that means that only the most extreme presidential actions, where motive is obvious, could be considered for post-presidential allegations. But it shouldn't be forgotten that the reason we've never faced this question before is that only one President ever has so obviously and publicly engaged in conduct that might meet the Court's bar.
Prof. Ginsberg is fair in including the staff of the President (or his co-conspirators) would also be in the hot seat, and that is as it should be. But what about the offending President?
The parade of horribles that keeps getting brought out is a truly scary phantasm, but if the majority of Americans again choose Trump or someone as bad. . . well, the Constitution doesn't tell anyone who to vote for.
More important to me, if one of Prof. Ginsberg's scenarios were to take place again, note that as the conduct gets worse, the chance of impeachment get better. As we've learned, impeachment of the President is a political exercise, but even partisan politics will have its limits. A President unilaterally cutting off arms to Ukraine, recognizing Russia's claim to the Donbas, and taking money for it? I'd think just the first two would be enough even for today's GOP.
I might be wrong about that, but I don't think I'm wrong about how far outside the lines set by the Court nearly all elected presidents would stray.
Finally, it's worthwhile to consider this case does not stand alone. The Court this term clarified (a bit) the problems with the actions Donald Trump took, and it's true that it recognized an immunity that had never been imagined because it never needed to be. But the Court also cut back on many of the excesses of the Executive's authority over his regulatory power, at least as big a story. That looks The Court this term was very interested in the Constitution's balance of powers overall, with the Executive Branch as Exhibit A. That, I think, is by far the most important context for understanding this term. The Court is developing a better understanding of presidential power because Congress has so throughly abandoned its job, which the Founders thought was so central they put it first in the Constitution. Nature isn't the only thing that abhors a vacuum, and as long as Congress continues its juvenile political hijinks, the Executive has taken over Job One. The Court's job is to keep an eye on that kind of thing, and has done it well this term.
Although I do not particularly like this Supreme Court ruling, we seem to be missing a subtext of this and other recent rulings. The Supreme Court is trying to re-establish the balance between an overly assertive executive branch and an underperforming legislative branch of government. In this instance, the legislative branch still has the option of impeaching a president for what the legislative branch considers to be high crimes and misdemeanors. In other decisions the Supreme Court is saying that legislation branch must clearly show its intent when in making laws (or amending laws) so that the executive branch in carrying out the laws through regulation will have less discretion. Unfortunately, it may take an entire new generation of Senators and Congress people to re-establish the balance. (Yes, I know Congress did impeach but not convict Trump twice. However, the next generation of legislators may have the courage to put country before president and party.)
Yes, Trump and trumpists are against federalism since they want a centralised authoritarian government and populist majoritarianism instead of constitutional/liberal democracy
I simply lack the legal understanding to make sense of these 3 categories. For example, could Biden now simply have Trump assassinated extrajudicially because many of his statements sound reasonably like seditious threats of violence to other legislators and a clear and present threat to the nation which Biden has taken an oath to protect? There is something like Kelo v New London here. Suddenly eminent domain which is for the sake of the people has become a kind of extrajudicial theft of property for the sake of one private citizen over another. in 2005 Kelo lost her house so New London could build a commercial shopping mall. It was not for a public facility like a highway or a public school. A president it now seems acting as he or she sees is in line with the oath of office, to protect American can jail or murder anyone. In light of this decision, on August 28, 1963, Kennedy could have had military jets strafe the 260,000 people who participated in the "March on Washington," when Dr. Martin Luther King, Jr. delivered his exalted “I Have a Dream” speech. If this is true, poor Stormy Daniels is soon to face certain death when Trump is elected. American does need to be protected from pornography.
This is a respectable opinion piece, but to me it is not a persuasive one.
A more persuasive argument would have more fully thought through the consequences for an opposite majority opinion -- something the Chief Justice's majority opinion did, and the dissents really, did not.
The first thing to point out is that the fact that international law is different fails to be persuasive because there isn't an international constitution. And other countries with constitutions don't have ours. The Court very carefully considered what our constitution says, and how it is structured, and while both dissents see things differently, I think the fact that the president is constitutionally the only branch of government assigned to one person is overwhelmingly important to this case.
The Court's discussion of the problem with presidential motives follows from that. As a singular focus of power, the President is a natural focus of prosecutors, and speculating about presidential motives is one of the biggest problems the Court sees, since motives are so obscure, complicated and multifactorial. This is just the thing partisans -- including prosecutorial partisans -- can and do take advantage of in an enormous number of situations including, in part, the Trump prosecution in this case. It doesn't take any imagination to wonder if a Republican led Department of Justice would file revenge cases against President Biden, since that's just what the Republicans are promising, and already trying to do. The dissents were not troubled by this Hatfields and McCoys scenario, but I certainly am.
Taking motive off the table has its downside, since a guilty mind (called mens rea in the law) is an essential element of criminal behavior. Yes, that means that only the most extreme presidential actions, where motive is obvious, could be considered for post-presidential allegations. But it shouldn't be forgotten that the reason we've never faced this question before is that only one President ever has so obviously and publicly engaged in conduct that might meet the Court's bar.
Prof. Ginsberg is fair in including the staff of the President (or his co-conspirators) would also be in the hot seat, and that is as it should be. But what about the offending President?
The parade of horribles that keeps getting brought out is a truly scary phantasm, but if the majority of Americans again choose Trump or someone as bad. . . well, the Constitution doesn't tell anyone who to vote for.
More important to me, if one of Prof. Ginsberg's scenarios were to take place again, note that as the conduct gets worse, the chance of impeachment get better. As we've learned, impeachment of the President is a political exercise, but even partisan politics will have its limits. A President unilaterally cutting off arms to Ukraine, recognizing Russia's claim to the Donbas, and taking money for it? I'd think just the first two would be enough even for today's GOP.
I might be wrong about that, but I don't think I'm wrong about how far outside the lines set by the Court nearly all elected presidents would stray.
Finally, it's worthwhile to consider this case does not stand alone. The Court this term clarified (a bit) the problems with the actions Donald Trump took, and it's true that it recognized an immunity that had never been imagined because it never needed to be. But the Court also cut back on many of the excesses of the Executive's authority over his regulatory power, at least as big a story. That looks The Court this term was very interested in the Constitution's balance of powers overall, with the Executive Branch as Exhibit A. That, I think, is by far the most important context for understanding this term. The Court is developing a better understanding of presidential power because Congress has so throughly abandoned its job, which the Founders thought was so central they put it first in the Constitution. Nature isn't the only thing that abhors a vacuum, and as long as Congress continues its juvenile political hijinks, the Executive has taken over Job One. The Court's job is to keep an eye on that kind of thing, and has done it well this term.
You would have written a far better essay.
Oh no the sky is falling! Will Biden now have Trump assassinated?
He just needs to figure out how to argue it's part of his official powers, or better, part of his constitutional powers and responsibilities.
Well hell Trump is going to kill democracy- what better reason
Bam. Totally immune. And the Democrats can simply party-line protect him from conviction after impeachment.
Yup. Dems should be ecstatic!!!
Although I do not particularly like this Supreme Court ruling, we seem to be missing a subtext of this and other recent rulings. The Supreme Court is trying to re-establish the balance between an overly assertive executive branch and an underperforming legislative branch of government. In this instance, the legislative branch still has the option of impeaching a president for what the legislative branch considers to be high crimes and misdemeanors. In other decisions the Supreme Court is saying that legislation branch must clearly show its intent when in making laws (or amending laws) so that the executive branch in carrying out the laws through regulation will have less discretion. Unfortunately, it may take an entire new generation of Senators and Congress people to re-establish the balance. (Yes, I know Congress did impeach but not convict Trump twice. However, the next generation of legislators may have the courage to put country before president and party.)
Yes, Trump and trumpists are against federalism since they want a centralised authoritarian government and populist majoritarianism instead of constitutional/liberal democracy
The opposite, actually. Nice try, though. Sheesh
I am not sure what you mean?
I simply lack the legal understanding to make sense of these 3 categories. For example, could Biden now simply have Trump assassinated extrajudicially because many of his statements sound reasonably like seditious threats of violence to other legislators and a clear and present threat to the nation which Biden has taken an oath to protect? There is something like Kelo v New London here. Suddenly eminent domain which is for the sake of the people has become a kind of extrajudicial theft of property for the sake of one private citizen over another. in 2005 Kelo lost her house so New London could build a commercial shopping mall. It was not for a public facility like a highway or a public school. A president it now seems acting as he or she sees is in line with the oath of office, to protect American can jail or murder anyone. In light of this decision, on August 28, 1963, Kennedy could have had military jets strafe the 260,000 people who participated in the "March on Washington," when Dr. Martin Luther King, Jr. delivered his exalted “I Have a Dream” speech. If this is true, poor Stormy Daniels is soon to face certain death when Trump is elected. American does need to be protected from pornography.
We are not for a centralized authoritarian govt. we are for devolving govt TO the states. I shouldn’t have to explain that