(July 30) President Joe Biden’s proposed Supreme Court-related “reforms” are part of a broader, unseemly attack on judicial independence, but conservatives should welcome one of those initiatives anyway.
Indeed, everyone should support a constitutional amendment, as Biden suggests, to relimit presidential immunity.
I firmly believe the July 1 high court decision in Trump v. United States, which decreed that presidents and former presidents are “presumptively” immune from criminal prosecution for acts within even “the outer perimeter of [their] official responsibility,” was one of the ten or twelve worst rulings in Supreme Court history. Nowhere does the text of the Constitution expound upon immunity, and, as renowned conservative constitutional law professor Randy Barnett wrote in the Wall Street Journal, “Chief Justice John Roberts offered little, if any, originalist justification” for his majority opinion.
Roberts’ language itself should make conservatives wary. For decades conservatives rightly derided the court’s creation of a “right” to an abortion from an “extension” of “penumbras, formed by emanations” from other rights actually found in the Constitution. Now Roberts, with similarly diaphanous (non)adherence to actual text, discovers an “immunity” found nowhere in the Constitution and then presumptively extends it to the “outer limits” of a president’s duties. In other words, if a president can claim he was exercising anything within the utmost bounds of presidential authority, he could not be prosecutable even for acts that otherwise obviously would be criminal.
Such a kingly, criminally unaccountable head of state, with sovereign rights supposedly emanating from the misinterpreted penumbras of several already-dubious court precedents, is the antithesis of the ethos that led American founders to separate from the British crown. While the Constitution clearly provides vast presidential discretion in the conduct of international diplomacy, there is nothing obvious in the charter’s description of a president’s domestic powers that lends itself to such sweeping claims of immunity.
For conservatives of a less theoretic inclination, though, let’s get practical. Consider four words: Potential President Kamala Harris.
To those who believe, as I do, that Harris is a dangerous radical, it should be frightening to think of putting her in the Oval Office with almost no fear of criminal liability….
[The full column is at this link.]
