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Trump signed two Executive Orders Thursday that focus on rolling back the role of the federal government beyond its statutory functions and ensuring that those efforts are emphasized across all departments and agencies. The orders are titled "Commencing the Reduction of the Federal Bureaucracy" and "Ensuring Lawful Governance and Implementing the President's "Department of Government Efficiency" Regulatory Initiative."
Let's take a look at them one at a time, beginning with the easiest. //
When combined with the Trump Executive Order requiring the repeal of ten regulations for each new one published in the Federal Register (see Unleashing Prosperity Through Deregulation), we can see the groundwork being laid to eliminate the superfluous government agencies and regulations that have no greater purpose than to aggrandize power to the bureaucracy. Add that to the concerted legal attack on the Administrative State (Trump Declares War on the Administrative State), and Trump could very well end up having rolled back a century of our descent from a constitutional republic into a being held in serfdom by an unelected, responsive, and uncaring bureaucracy. //
Popdaddy
6 hours ago
Months of pre-election planning went into this. There are other plans and so much more can be accomplished. //
Dieter Schultz
5 hours ago
When combined with the Trump Executive Order requiring the repeal of ten regulations for each new one published in the Federal Register (see Unleashing Prosperity Through Deregulation), we can see the groundwork being laid to eliminate the superfluous government agencies and regulations that have no greater purpose than to aggrandize power to the bureaucracy.
I think soon... maybe before the 6 month mark but, sooner rather than later... we'll need another attack vector on the bureaucratic state and that would be for enough states to get together and challenge the regulations and federal laws as being unconstitutional in that they encroach on the states' duties and responsibilities under the Constitution.
Trump can apply tremendous pressure from the inside and deflate the bureaucratic bubble but, I suspect, it'll require the states... well, anyway, a core of the red states... to make it impossible for the federal government's overreach to ever be resurrected by the elites when Trump and his heirs leave the world's stage.
In 1932, FDR decided he had better use for the seat and summarily fired Humphrey. Humphrey sued but died five months later. The executor of his estate pressed the suit to recoup five months' salary. This spat was destined to become a landmark Supreme Court precedent called Humphrey's Executor v. United States, 295 U.S. 602 (1935), or just Humphrey's Executor. Mr. Humphrey's estate hit the jackpot.
In a unanimous opinion, the Supreme Court ruled: //
This ruling let independent agencies do whatever they wished. As rulemaking became a big deal, an independent agency in the hands of political opponents of the president with the power to interpret statutes and make legally binding regulations could engage in sabotage of the president's agenda. //
Shipwreckedcrew @shipwreckedcrew
.
Earlier today I posted a Substack article arguing that the TROs being sought against the Trump Admin are, in many respects, great opportunities for the Admin to assert its Article II authority over the Admin. state and push back against encroachments by Congress and the lower…SCOTUS has danced around the continuing vitality of the Humphrey's decision for many many years. The issue is now squarely before them. This is a fight worth having at this moment in time.
And the most important part about fights worth having is that you need someone who will fight them. And we do. //
Musicman
6 hours ago
Let's pray we finally have a Supreme Court that cares about the Constitution. There are three branches and only three branches. Either each "independent" board reports to the Executive, the Legislative or the Judicial. Those are the only choices. The notion of any kind of board with any kind of power could exist apart from the three branches is simply unconstitutional. Period.
Judge Contreras relied on a very shaky 1935 precedent called Humphrey’s Executor v. United States. This precedent established the, in my view, unconstitutional and un-republican plethora of "independent" boards and commissions that carry out executive functions but aren't answerable to the guy in whom the "executive Power" of the United States is "vested." Recent cases have held that any commission holding anything other than an advisory capacity must be controlled by the President; how the MSPB's role in adjudicating employment disputes will be viewed is unknown.
This case is headed to the DC Circuit and the Supreme Court. Another similar case, that of Special Counsel Hampton Dellinger, is at the Supreme Court; Trump Sends Scorching Appeal of DC Court Order Reinstating Biden Appointee to the Supreme Court – RedState. In that case, Trump fired Dellinger, who had the same legal protections as MSPB judges. A judge ordered Dellinger reinstated, and the Supreme Court will get Dellinger's response to the government's objections at 2 p.m. Wednesday.
Other possible cases testing the limits of Humphrey’s Executor are the firings of 17 IGs, who, by statute, can only be fired after a 30-day notice to Congress and an explanation of the reasons, and a member of the National Labor Relations Board. //
Laocoön of Troy
10 hours ago
Remember corrupt FBI agents Peter Strzok and Lisa Page? Remember the friendly judge who they secretly met with at a party to plot their next moves against Trump? The crooked judge? Judge Rudolph Contreras (Obama appointee). Strzok referred to him affectionally as "Rudy" like they were old buds.
Looks like the crooks from Trump's first term are trying to get the band back together.
all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register. //
The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General. //
If this order sticks, Trump has permanently and fundamentally changed the Executive Branch, as it has existed since 1935, in less than a month. //
bk
9 hours ago edited
Liberals: "Musk is unelected and therefore can't tell us what to do!"
Also libs: "How dare Trump interfere with tens of thousands of unelected bureaucrats who have been telling us what to do for decades!"
Though they lost, they got a solid dissent to work with and went to the Supreme Court.
Their arguments are that the president has absolute authority to remove officials at will and that every time the Supreme Court has heard a case similar to Dellinger's, they have agreed. //
Whatever the agency, for the President to discharge his constitutional duty to supervise those who exercise executive power on his behalf, the President can “remove the head of an agency with a single top officer” at will. Collins 594 U.S. at 256. On that basis, President Biden in 2021 fired the single head of the Social Security Administration without cause. //
!This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will. “Where a lower court allegedly impinges on the President’s core Article II powers, immediate appellate review should be generally available.”. //
As a general matter, the Constitution “scrupulously avoids concen-trating power in the hands of any single individual” save for the President, who is“the most democratic and politically accountable official in Government.” Id. at 223-224. Single agency heads thus must be accountable to the President through at-will removal. There are only four single agency heads upon whom Congress has sought to confer tenure protection: the Directors of the Consumer Financial Protection Bureau (CFPB) and Federal Housing Finance Agency (FHFA), the Commissioner of Social Security, and the Special Counsel here. The former three are undisputedly subject to at-will removal under Article II. This Court’s precedents foreclose any special exception for the Special Counsel.
Margot Cleveland @ProfMJCleveland
·
Replying to @ProfMJCleveland
3/3 As drafted, the Order would prohibit Donald Trump & heads of agencies from assessing data or firing anyone. Would be most restrictive of all TROs entered to day if Court enters.
10:23 PM · Feb 15, 2025
Under the Constitution, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”
Who penned these outrageous words? Democrats and many pundits might answer Vice President J.D. Vance. Over the weekend, Vance provoked an onslaught of criticism for suggesting that federal district judges “aren’t allowed to control the executive’s legitimate power.”
But the usual suspects would be wrong. The right answer is John Marshall, the greatest chief justice in Supreme Court history. And he did not squirrel this view away in a private journal. Instead, Marshall publicly explained that courts could not review presidential decisions on “political” subjects “entrusted to the executive” in a Supreme Court opinion.
He announced this principle not just in any case, but in Marbury v. Madison, the greatest opinion in Supreme Court history. The very same Marbury that concluded that federal judges should reject unconstitutional statutes, also recognized that courts could not intrude into the president’s exercise of his constitutional — dare we say “legitimate” — powers. Marshall’s opinion has given rise to the “political question doctrine,” which prohibits courts from reviewing decisions vested in the Constitution in the other branches, such as making war, prosecuting cases, and conducting impeachments. //
During the Vietnam War, Rep. Elizabeth Holtzman sued to stop the bombing of Cambodia (which President Richard Nixon had ordered). Holtzman obtained an injunction from a district court. The court of appeals promptly stayed the district court order. Holtzman petitioned Supreme Court Justice Thurgood Marshall, who oversaw that court of appeals, to vacate the stay. Marshall properly refused, writing “the proper response to an arguably illegal action [by Nixon] is not lawlessness by judges charged with interpreting and enforcing the laws.”. //
The question whether the president can fire heads of “independent” agencies such as multi-member commissions is still debated, but the clear trend of recent Supreme Court decisions indicates that the president can remove these officers if they refuse to carry out presidential orders. No doubt Trump’s recent removal of members of the National Labor Relations Board are intended to set up a case to settle this question at the Supreme Court. Our prediction is that Trump will win that dispute — decisively.
JD Vance @JDVance
·
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.
Judges aren't allowed to control the executive's legitimate power.
3:13 PM · Feb 9, 2025 //
Rapid Response 47 @RapidResponse47
·
President Trump demolishes Fake News "reporter" @svdate on Air Force One:
POTUS: "I don't know even what you're talking about. Neither do you. Who are you with?"
@svdate: "HuffPost, sir."
POTUS: "No wonder. I thought they died."
11:08 PM · Feb 9, 2025. //
The president certainly has a way with reporters, doesn't he? Let's talk about the dishonest framing of Date's question, though.
Read what Vance wrote again. Did he ever "suggest" the administration would "enforce it themselves" regarding going around a Supreme Court ruling? Was the Supreme Court even mentioned at all? The answer to all those questions is no. Instead, what Vance did was state a plain fact, at least in his view of the law. Namely, that the judge is out of line in usurping the statutory authority of the executive branch to control the bureaucratic state.
No doubt, the remedy to those things will be an appeal, and when it reaches the Supreme Court, it will likely end up being a bloodbath for the bureaucracy. On that front, Democrats and the press should be careful what they wish for regarding waging these court battles. The only reason Roe v. Wade was overturned is because leftists picked a fight they weren't ready to win over a state law in Mississippi.
Do you know who did brag about ignoring the Supreme Court, though? That would be one Joseph Robinette Biden. //
MajorKong
7 hours ago
Vance has the benefit of being correct on the legal point as well. The relief is extra judicial. Not available to the court. Bondi needs to ask for sanctions against the judge at the next level. //
emptypockets
4 hours ago
So that's why HuffPo got a seat in the press briefing lineup. For their value as a chew toy.
President Trump followed up his rampage through the National Labor Relations Board (Trump Goes Pearl Harbor on the National Labor Relations Board, Fires Chairman and General Counsel) by firing two Equal Employment Opportunity Commissioners and its general counsel. The newly reduced EEOC can no longer bring enforcement actions or initiate rulemaking as it doesn't have a quorum. //
Under Joe Biden, the EEOC bullied companies into submitting to DEI and replacing Equality with Equity.
Much like the defenestrated acting chairman at the NLRB, the two fired Democrats were not happy about the cruel turn of fate. //
Unlike the NLRB commissioner, whose firing seems questionable because the law says NLRB commissioners can only be fired for cause, the EEOC's enabling legislation does not require that.
The EEOC now only has two members and cannot act until President Trump nominates replacements. This is mostly a good thing.
I think there is something else going on with these firings. It seems like the Trump White House may be teeing up a challenge to a Supreme Court case.
In 2020, the CFPB was challenged for its blatantly unconstitutional structure. Under the law, it was managed by a single director who could only be removed "for cause." The Supreme Court agreed that allowing a single individual to control an agency outside the reach of the president to remove them was unconstitutional.
I believe the target of Trump's removal of three commissioners, one who can only be removed for cause and two without similar protections, is to convince the Supreme Court to overturn Humphrey's Executor vs. United States. This 1935 decision held that the president could only remove the commissioner of independent agencies for reasons established by Congress. The Selia decision established that did not apply to single commissioners; Trump wants to take a run at it to see if he can get that precedent overturned the way Chevron was reversed last summer; //
We'll see how this turns out, but even if Trump is wrong, the NLRB and EEOC will not be lumbering about the countryside and disturbing the livestock until the Supreme Court speaks. //
OrneryCoot
3 hours ago
There is something inherently wrong with the idea that the leader of the executive branch of government cannot fire persons under his authority, tasked with implementing his policy, in the executive branch. That is all kinds of "only in Washington" dumb. Trump is right to blast through that and try to tee up a SCOTUS decision. In the meantime, I will breathe a sigh of relief that these people are removed from their positions of power. Democrat appointed workers in the administrative state are open sores that need to be cut out.
anon-n5wm
6 hours ago
A woman wearing a cross in a room full of atheists, God bless America. //
Tech in RL
4 hours ago
It’s not suprising she’s good at her job. She was Deputy Press Secretary to Kayleigh McEnany, after all. She studied with the master. Trump is the most transparent president in recent history and makes her job even easier. She doesn’t have to lie like the DEI hire did. //
anon-wy307
4 hours ago
Seila Law vs. CFPB (2020). The President is the sole individual in whom the executive authority is vested, and the authority of the President to fire personnel is absolute. Congress attempting to interfere or be consulted violates the separation of powers. The 30-day notice is unconstitutional.
That was the ruling.
Trump isn’t rewriting the 14th Amendment; he’s applying the law as it is, based on its plain language and the Supreme Court’s existing precedent. //
The 14th Amendment — ratified after the Civil War and ensuring that former slaves were U.S. citizens — provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The plaintiffs focus on the first part, but barely glance at the second, arguing that, with few exceptions (such as the children of foreign diplomats in the United States), anyone born in the United States is “subject to its jurisdiction,” simply by virtue of being within its borders.
They do this by relying almost entirely on United States v. Wong Kim Ark, an 1898 U.S. Supreme Court opinion that the plaintiffs get hopelessly wrong. In Wong, the court held that a man born in San Francisco to Chinese immigrants was a U.S. citizen under the 14th Amendment. Omitting some key facts, the plaintiffs argue this means that all children born in the United States of all immigrant parents, with the aforementioned very rare exceptions, automatically are U.S. citizens. Even a cursory read of the opinion, however, shows that the Supreme Court ruled nothing of the sort.
Wong was born in California and lived his entire life in the United States, until he took two trips to China to visit family as an adult. The first time he returned to the United States, he was admitted through customs as a U.S. citizen. A few years later, after visiting China a second time, he was denied reentry after a customs official concluded that he was not a citizen, because his parents were not U.S. citizens when he was born here.
SCOTUS sided with Wong, but for a very important reason the plaintiffs fail to mention: Wong’s parents were legal immigrants to the United States. The entire foundation of the plaintiffs’ argument — that SCOTUS has already upheld birthright citizenship for the children of illegal immigrants by this decision — is therefore completely and obviously wrong.
In rendering its opinion, SCOTUS dove deep into the meaning of “subject to the jurisdiction thereof.” What they found, tracing back hundreds of years through English common law, is that the phrase is rooted in a mutual relationship of “allegiance and protection” between the individual and the sovereign (historically a king, but the nation here). Children “born in the allegiance,” and therefore citizens entitled to “protection” at birth, included children born to subjects of the king, as well as children born to “aliens in amity” — that is, aliens lawfully “domiciled” there with the king’s consent. Notably, the court found that this did not extend to the children of aliens in “hostile occupation of part of our territory.”
Consent is the operative word. In ruling for Wong, the Supreme Court made clear that the United States has a say in who is subject to its jurisdiction, noting that noncitizens like Wong’s parents are “entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here” (emphasis added). In Wong’s case, this meant that the 14th Amendment granted him citizenship because he was: (1) born in the United States; and (2) subject to its jurisdiction, due to the fact that his parents were lawful immigrants permitted by the United States to reside here at the time he was born.
That sounds a bit arcane, and it likely is; the president, as Commander-in-Chief of the armed forces, should take the word of the Constitution first and foremost. But, yes, everything is (tiresomely at times) subject to legal interpretation. What's interesting here is that Durbin is asking the DOJ to rescind opinions that he evidently agreed with while Joe Biden was president.
Did you hear that scraping sound? That's the sound of goalposts being moved. //
anon-gkyt
25 minutes ago
Hey, Durbin. What part of Commander-in-Chief don’t you get?? As for use of the military domestically, General Winfield Scott, the senior army commander, stated in 1861 a self-evident fact. The military is to deal with threats foreign and domestic. Ever heard of Lincoln using the US military domestically? If that was not “domestic”, the invasion of the Confederacy was simply an act of aggression by the US government.
As provided by law, without objection, the 119th Congress formally counted the votes of the Electoral College, and, at 1:35 p.m. Eastern, having received 312 electoral votes, Donald Trump was certified as the 47th President of the United States (and JD Vance was certified as vice president). Vice President Kamala Harris presided over the session — something that places her in a somewhat exclusive (albeit not enviable) club.
As Congress prepares to do its duty, validate the Electoral College vote, and declare Donald Trump the 47th President of the United States, the bitter-clingers pushing the discredited "Trump is an insurrectionist" trope are making a final push to have their peculiar theory taken seriously. The latest iteration of this nonsensical twaddle was posted in The Hill in "Congress does not have to accept Trump's electoral votes."
The theory goes like this: Trump is an insurrectionist. The Constitution disqualifies insurrectionists from holding office, so Trump cannot be president. Given the right light and the correct amount of psilocybin, it makes perfect sense.
To the extent that sane people think there is one, the controversy starts with Section 3 of the 14th Amendment. //
Instead of a fraudulent vote count, they want to use a fraudulent accusation of insurrection. As damaging to the nation as this move might be, this strategy is open. All it takes is 20 percent of the House and Senate members to sign a petition to trigger a vote. If a majority of both houses vote to exclude votes, they can, and the Supreme Court has no role in the process. Their conceit is thinking that once their side does this, everyone will forget about an indisputable electoral victory being set aside by way of backroom dealing. That is the quickest way for armed men to take control of the process and turn us into Pakistan. But that seems to be what the authors want.
The very idea that a blanket preemptive pardon would be handed out is an anathema to the very idea of justice because it would occur before any charges were made. And it would prevent any charges from ever being leveled. As such, the idea of preemptive clemency simply gives one carte blanche to act in any manner he/she sees fit while in office, provided they have the expectation of pardon. //
I don't see how this leads to anything but a pathway to the abuse of political power. //
If you cannot ever have a trial, then a guy like Mayorkas can treat the entire country like his own little fiefdom and forever change the United States culturally, socially, and legally. All on his own. And with a blanket and preemptive pardon, presidential cabinet members, NGOs, and partisan bureaucrats have the freedom to make policy that we didn't vote for and probably never would.
What the progressives could gain, if Markey were to get his Christmas wish, is a short-term insurance policy against prosecution for guys like Mayorkas, or John Brennan, or Mark Milley, but it will set a precedent for long-term abuse by presidents in the future. Trump could employ the same tactics, and while the progs would scream and shout, there wouldn't be much they could do about it legally, not to mention the fact that they were the ones who started rolling that snowball down the hill in the first place. //
Now, for Trump, if he were to find himself in the position where he could not prosecute certain individuals for treason or malfeasance, perhaps he could at least have them investigated. The products of such interrogatories might not lead to any charges because of the pardons, but at least such "fact-finding endeavors" might illuminate what abuses (if any) actually occurred so that we could avoid more in the future. This information would be made public to the electorate, and from that, what happens happens.
Tearing down institutions and traditions tears apart a society, a country. Sure, things can evolve over time, but to rip stuff out by the roots all at once is very reckless. Issuing preemptive pardons before any charges are even leveled prevents justice because we never have an opportunity to find out if it was ever being served in the first place. Did Mayorkas break the border all of his own volition just because he felt like it? Was he instructed to do it? If so, by whom? Who does he report to? Oh...the president. //
Billy Wallace
20 minutes ago edited
Pardoning everyone in your administration will be the new normal if Biden does it
if Biden does it, Trump most certainly will in January 2029, and why wouldn't he? I would
it will just become standard operating procedure, as will issuing an executive order declaring any and all records and documents in your possession to be declassified personal records
Merz added: "I don't need to tell any of you how important it is that Leader Jeffries is serving as Speaker Jeffries when it comes time to certify the election on January 6, 2025."
Why? What have they got in mind? When it comes to certifying the election, which will be done by the incoming Congress, what difference does it make whether it's a Speaker Johnson or a Speaker Jeffries (shudder), if they are going to honestly follow the process defined by the Constitution and statute? Why is it important that Hakeem Jeffries be the speaker when this happens? What is Julie Merz driving at? What do Democrats have in mind, here? //
Democrat-controlled House will almost certainly start the Impeachment Express up again. //
SDN INTJ
an hour ago
They are planning on refusing to certify Trump's election.
DKnight SDN
43 minutes ago
Then it’s civil war time…
Biden and Harris can’t stay in the White House beyond Jan. 20th, 2025. It there’s no POTUS or VP available, who is 3rd in line for interim President? Yes, the Speaker of the House. So the one that hogties the succession directly benefits by becoming temporary king.
Like I said, civil war in the offing if that occurs.
A video of Rep. Jamie Raskin (D-MD) was unearthed on Monday that appeared to show him threatening civil war if Donald Trump won the election.
Raskin was speaking at a discussion on voter rights hosted by a left-wing professor when he made the controversial comments, which included a pledge to disqualify Trump on January 6th, 2025 based on the Fourteenth Amendment. //
He seems completely convinced that he would be the good guy in a scenario where he and other Democrats overturned an election based on their own political whims. He calls Trump supporters "rampaging mobs" despite them representing the side that won the election in his hypothetical.
Cannon ruled Smith’s appointment violates the Appointments Clause and granted the motion to dismiss the indictment against Trump. //
Judge Aileen Cannon on Monday threw out the lawfare prosecution against former President Donald Trump for allegedly mishandling classified documents after finding the Biden administration unconstitutionally appointed Special Counsel Jack Smith. //
“None of the statutes cited as legal authority for the appointment … gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith,” the ruling states.
Cannon ruled Congress is granted via the Constitution a “role in determining the propriety of vesting appointment power for inferior officers.”
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon ruled. “If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so.” //
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,” Thomas opined.
"The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution," her order states. "Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause [...] but the Court need not address proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding." //
"The bottom line is this," she wrote. "The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigateand prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause."
Monday, the Supreme Court handed down a mixed bag of a ruling on presidential immunity. In my view, they took what could've been a straightforward and elegant decision — the president is immune from prosecution for acts committed in office unless he has been impeached for those acts — and turned it into a dog's breakfast of angels-on-the-head-of-a-pin litigation about what constitutes official and unofficial acts. //
What has passed with remarkably little notice is Justice Clarence Thomas's concurrence. Justice Thomas says the Court is putting the cart before the horse. The first question that needs to be answered is not whether acts were official or unofficial. The critical first question is whether this prosecution is legal at all. Thomas's comments begin on the 44th page of the linked document.
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
...
Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”
Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.
Minister of War
2 hours ago
"the president is immune from prosecution for acts committed in office unless he has been impeached for those acts"
Bingo!
Period.
End of story.
Close the book.
John Roberts is an idiot once again & the conservative justices are required to roll their eyes & go along with his stupidity just because that was the only way to get even a partial victory.