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[Maximum Spin]

Lol, do they? This has nothing to do with me not liking the rules as written, and everything to do with the powers that be having no respect for them.

What Constitutional rule do you think the Court is not following here?

[Frumple]

You don't have to like the Constitution, but the courts have to follow it.

That may be the most nonsense statement I've seen today, even with the suicidal decision that came out of the SCOTUS. We literally have multiple levels of judicial administration (the entire appellate court system up to the SCOTUS, which has cheerfully shat on the constitution more than just once or twice over its history) to try to deal with courts not following it.

The courts don't have to follow a damn thing if no one's willing and able to force them to follow it. Sometimes they actually self-police on that front, but US history has more than one example of them just not, and it taking legislative and/or executive action to unfuck the court's chicanery.

[nenjin]

You mean all the latest rulings that the dissenters have called "a-textual" at best?

Go ahead though. I really admire a guy who holds up a book and quotes the rules while the thieves loot everything around them.

[Maximum Spin]

You don't have to like the Constitution, but the courts have to follow it.

That may be the most nonsense statement I've seen today, even with the suicidal decision that came out of the SCOTUS. We literally have multiple levels of judicial administration (the entire appellate court system up to the SCOTUS, which has cheerfully shat on the constitution more than just once or twice over its history) to try to deal with courts not following it.

The courts don't have to follow a damn thing if no one's willing and able to force them to follow it. Sometimes they actually self-police on that front, but US history has more than one example of them just not, and it taking legislative and/or executive action to unfuck the court's chicanery.

I admit that "have to" is ambiguous but I thought it was pretty obvious that I am saying that the courts are required by law to follow it, not that they will magically be compelled to do so. You "have to" put your seatbelt on and your phone down when you drive, even though you will probably get away with it.

[da_nang]

-snip-

If Congress had (it has not) passed a law granting the Executive broad power to assassinate American citizens, then Biden would get presumptive immunity for using that power to assassinate Trump, which might then be dispelled if, say, Congress had specifically excepted using the power for political reasons and evidence were presented that Biden's assassination of Trump had been politically motivated.

But the thing is, you don't need an explicit assassination power. You just need a power that can cause death. The majority opinion is then pretty explicit that you can't admit evidence or have juries probing official acts, even though one would inevitably have to probe official acts to prove such acts were not a pretext for otherwise criminal behavior.

This is especially true for crimes with a mens rea component, as per the majority opinion:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
[...]
If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzger-ald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unoffi-cial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.
[...]
Allowing prosecutors to ask or suggest that the jury probe official acts for which the Pres-ident is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.

If a president commits an official act as a pretext for a criminal unofficial act, how would a prosecutor prove the criminal unofficial act without bringing in the official act, let alone the mental state for any mens rea requirements during that official act?

[Maximum Spin]

If a president commits an official act as a pretext for a criminal unofficial act, how would a prosecutor prove the criminal unofficial act without bringing in the official act, let alone the mental state for any mens rea requirements during that official act?

If the President acts within his Article II power or within the power granted him by Congress, then separation of powers doctrine holds that it is not for the courts to call it criminal or a pretext or anything whatsoever. The question for the courts to decide is whether the President is acting within that power, and, secondarily, in some cases, whether the Congress has that power to delegate in the first place. There is no question of mental state in whether a particular power is Constitutional or not.

BTW, I shouldn't need to point this out, but impeachment is still on the table for official acts, which is the standard the Constitution provides.

[lemon10]

I hope the tenuous thread of proving it's actually part of the office, not just a claim that it is, can remain intact.

I would hope, for instance, that if an action exceeded what is allowed by the Constitution, such a claim would not hold.

The little I let myself read on this ruling, is that there is an annoying amount of ambiguity still in the ruling; along the lines of "I'll know it when I see it" kind of criteria.

Either way, it's a good way to set the system up for all kinds of shenanigans.

I dunno, based on this courts actions it feels fairly unambiguous to me.
Is the president a democrat? Yes? Well then, jaywalking is clearly an unofficial act unrelated to their office, straight to jail.
Are they a republican? Well then, of course them declaring themselves the eternal king of America is an official act, see, they officially declared it and everything!

[Dostoevsky]

Sorry I guess my intent wasn't clear - I was basically relating that I don't understand why people think this decision is a catastrophe, because clearly the agencies were able to function before the ruling, so claiming things will break when we went back to the earlier state, clearly can't be catastrophic.

I generally avoid this thread these days for my own sanity, but a quick response here relating to the effects of the decision.

Chevron deference meant that, in a situation where a statute was ambiguous (which is very often the case, and often intentionally so to avoid congressional responsibility) a court will give an agency deference on its interpretation of said statute. Not a blank check however, as when an agency takes an 'arbitrary and capricious' stance that doesn't fly.

A good chunk of the motivation behind this was that agency staff are trained experts in a policy area, while judges may not be. (For an example of where judicial non-expertise has been a recurring problem, see how it's handled patent law over the decades.)

This sounds like a lot of deference, and it can be, but courts have routinely ruled that a given statute isn't ambiguous or an agency was acting arbitrarily and capriciously. (Some presidential administrations have had a lot more trouble passing this test than others.)

Now, however, a court will be giving an agency no deference. What this means in practice is that a court will be more free to decide an agency action is incorrect, meaning less completed agency action overall. On paper this would sound like favoring the right more than the left, as the right tends to have the position of less agency action overall, but in practice this is isn't very accurate. There are still hundreds or thousands of laws that require agency actions to implement, and even beyond that both parties commonly use agency action to drive their desired policies.

My personal prediction is that this will ultimately result in less policy change and development writ large up and until congress gets more active and precise in its legislating - not something I'd bet on happening anytime soon.

There is, however, the additional wrinkle in today's decision (not that one, one of the other ones) that effectively gets rid of the statute of limitations for challenging an agency action under procedural grounds. Combined with the Chevron case you could see more overruling of existing rules and thus lead to less overall existing regulation.

[da_nang]

If a president commits an official act as a pretext for a criminal unofficial act, how would a prosecutor prove the criminal unofficial act without bringing in the official act, let alone the mental state for any mens rea requirements during that official act?

If the President acts within his Article II power or within the power granted him by Congress, then separation of powers doctrine holds that it is not for the courts to call it criminal or a pretext or anything whatsoever. The question for the courts to decide is whether the President is acting within that power, and, secondarily, in some cases, whether the Congress has that power to delegate in the first place. There is no question of mental state in whether a particular power is Constitutional or not.

That's just proving my point. Example:

The president orders the secret service to conduct a raid on one of his rivals, ostensibly to investigate money laundering. Secretly, he orders the secret service members to kill his rival. The raid "goes bad" and shots are fired; the rival is dead.

The president is well within his power to order the secret service to conduct raids in order to investigate money laundering, and courts will now be forced to assume at least presumptive immunity. A prosecutor wants to prosecute the president for criminal conspiracy to commit murder, but he'll be unable to admit the smoking gun evidence since he'll need to probe the official act. He certainly won't be able to be able to admit evidence of the president's mental state since all the evidence would come from the president's communication to officers of the executive branch, which are now protected by the immunity.

[Maximum Spin]

The president orders the secret service to conduct a raid on one of his rivals, ostensibly to investigate money laundering. Secretly, he orders the secret service members to kill his rival. The raid "goes bad" and shots are fired; the rival is dead.

The president is well within his power to order the secret service to conduct raids in order to investigate money laundering, and courts will now be forced to assume at least presumptive immunity. A prosecutor wants to prosecute the president for criminal conspiracy to commit murder, but he'll be unable to admit the smoking gun evidence since he'll need to probe the official act. He certainly won't be able to be able to admit evidence of the president's mental state since all the evidence would come from the president's communication to officers of the executive branch, which are now protected by the immunity.

When a President misuses power granted to him by Congress (who created the Secret Service by statute), the remedy is impeachment followed by prosecution, yes. Then, hopefully, Congress reconsiders giving the President such powers in the first place.

[da_nang]

-snip-

When a President misuses power granted to him by Congress (who created the Secret Service by statute), the remedy is impeachment followed by prosecution, yes. Then, hopefully, Congress reconsiders giving the President such powers in the first place.

That's not what the majority opinion says.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.

Impeachment isn't necessary for criminal prosecution.

[Maximum Spin]

That's not what the majority opinion says.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.

Impeachment isn't necessary for criminal prosecution.

Not necessary, no, but it is still ON THE TABLE, it hasn't gone anywhere, and you were complaining that the majority opinion restricts criminal prosecution too much. That quote is explicitly saying that impeachment is not necessary to prosecute for unofficial acts or official acts where you can overcome presumptive immunity...

[da_nang]

Not necessary, no, but it is still ON THE TABLE, it hasn't gone anywhere, and you were complaining that the majority opinion restricts criminal prosecution too much. That quote is explicitly saying that impeachment is not necessary to prosecute for unofficial acts or official acts where you can overcome presumptive immunity...

And how do you propose one would overcome presumptive immunity if the only evidence that could lift the presumption probes the official act or is part of his core powers (e.g. talking with other members of the executive)? That evidence is shielded by immunity! That's the problem!

The president could literally tell his secret service agents in writing, "I order you to break the law and murder my rival," and that evidence would be inadmissible, shielded by the immunity.

That is not rule of law. That is not how separation of powers works, nor should it.

[Maximum Spin]

Not necessary, no, but it is still ON THE TABLE, it hasn't gone anywhere, and you were complaining that the majority opinion restricts criminal prosecution too much. That quote is explicitly saying that impeachment is not necessary to prosecute for unofficial acts or official acts where you can overcome presumptive immunity...

And how do you propose one would overcome presumptive immunity if the only evidence that could lift the presumption probes the official act or is part of his core powers (e.g. talking with other members of the executive)? That evidence is shielded by immunity! That's the problem!

The president could literally tell his secret service agents in writing, "I order you to break the law and murder my rival," and that evidence would be inadmissible, shielded by the immunity.

That is not rule of law. That is not how separation of powers works, nor should it.

I do not think you understand what you're talking about at all.

[da_nang]

-snip-
I do not think you understand what you're talking about at all.

Then help me understand. In the secret service case I described, how would a prosecutor prosecute the president for the criminal conspiracy?

• The prosecutor files charges of criminal conspiracy against the president.
• In pre-trial, the president claims to the judge that it was an official act and that he should have presumptive immunity.
• The judge finds that ordering the secret service to conduct raids to investigate money laundering is an official act, and grants presumptive immunity.
• The judge requests evidence to lift the presumption.
• The prosecutor provides recorded messages between the president and the secret service where the president explicitly orders the secret service to kill his rival.
• The prosecutor also provides detailed forensic evidence for the criminal actions of the secret service.
• The judge, per the majority opinion, finds that the messages between the president and the secret service implicate the core power of the presidency to communicate with the executive branch, and declares the evidence inadmissible as it is shielded by the immunity.
• The president requests the charges to be summarily dismissed since none of the remaining presented evidence implicate the president in any crimes, even if the evidence is held to be true.
• The judge agrees and summarily dismisses the charges.
• As a bonus, the president offers pardons to the secret service members.

In a normal system, there's no reason why cloaking a criminal act in an official act should hinder the prosecution, yet the majority opinion seems to be putting up insurmountable walls.