President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law.
President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law.
From his first day in office—and every day since then—President Biden has taken action to strengthen American democracy and protect the rule of law. In
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I'm a bit skeptical on the first bullet point: while I'm all for an amendment to the US constitution that spells out in detail the limits on presidential authority, it's still an amendment that has to get passed. That means that it needs a 2/3rds majority in both the House and the Senate, or it needs to be supported by 2/3rds of the state legislatures. I don't think there's any way in hell that Biden's going to be able to get that through while the prospect of Trump regaining the presidency is on the horizon. At the moment, 47% of the US Senate is Democrat, with 4% caucusing with the Democrats most of the time, 49% of the US House is Democrat, and 46% of State Governors are Democrat. While it's not 100% certain that all Republicans would vote along party lines, I'm reasonably certain that all Republicans would vote along party lines, which means a constitutional amendment is dead in the water.
Now, if Harris wins the presidency, there's a good chance that the Republicans would be willing to vote for an amendment to curtail presidential authority. But right now? Nuh uh. Not gonna happen. As for the other two bullet points, they're certainly more possible right now than a constitutional amendment, but still unlikely. Dems don't have a filibuster-proof majority in the Senate, and I'm certain that the Republicans would filibuster the shit out of that. Even if that wasn't the case, there's no way it'd pass the House. Best case scenario, Harris wins, with a large majority in both houses, and is able to push some legislation along these lines through.
Edit: changed language from "ratified by 2/3rds of the states" to "supported by 2/3rds of the state legislatures".
Can we just step back for a minute and look at the big picture here? We're at a point where passing an amendment that says "the president cannot commit crimes" is seen as something that has no chance in passing, because one party is dedicated to protecting a criminal. The founders would be ashamed of us.
I mean, no argument from me. The fact that the Supreme Court basically just ruled that the President can operate independently from the law, like a fucking king, would have every single one of those guys spinning in their graves fast enough to power a city. It's just the latest milestone in a decades-long quest by the Heritage Foundation to convert America's government into a Christian theocracy.
You're 100% missing the power of a sitting president making this official statement in the first place. Further, then giving the House/Senate and the state governments a choice to publicly shot themselves in the feet, on the record, by opposing such a common sense approach to this obvious problem.
The goal isn't the amendment, it would be nice, but it's not the first/main victory here.
Presidents say shit all the time, though. Just saying that there is a major problem is newsworthy, but it's all worth a hill of beans if it doesn't lead to lasting changes. I believe that he was right in that an amendment will be the securest way to enumerate the boundaries of executive authority, as it will be much harder for the Supreme Court to fuck that up, but there is an extremely high bar to pass to get an amendment through. If he decides to go the legislation route instead, any new laws that are passed by Congress are potentially subject to being overturned by the courts.
As for the optics of Republicans opposing supreme court reform or curtailing of executive authority... meh. We all watched nearly every single Republican in the House vote to not impeach Donald Trump on two separate occasions, for incredibly stupid reasons, and most of those people won re-election. Relying on the public to make good decisions when faced with bald-faced congressional corruption is a losing proposition.
All Biden needs to do is threaten to use his newfound powers to meddle in the red states’ crusade against lgbtq.
I mean, thanks to Obama, the president has the authority to kill any US citizen they deem as a threat. The ACLU brought a case against the government about that, but that case was dismissed on procedural grounds, so it's still constitutionally untested. But regardless of it being tested, there is precedent for it, thanks to Obama's murder of Anwar Al-Awlaqi. And since the precedent says that the murder by the executive branch of any US citizen it deems a threat is kosher, well that would fall pretty nicely under the heading of "official acts of office" that this latest supreme court case showed would be absolutely immune from prosecution.
So I guess the question is: does Biden feel like murdering a bunch of citizens?
Wasn't that guy fighting for ISIS? Like actively engaged in the fight against US forces and killed in a targeted drone strike?
I'm all for Biden using his newfound kinghood to say, lock congress in their chamber until they vote the right way, but I don't think your example is comparable.
He was alleged to be the leader of Al-Qaeda in the Arabian peninsula. But, of course, he was a US citizen, and the drone strike happened in Yemen, a country we were not at war with. So it raised a significant number of ethical and procedural questions. Also, we killed his 16-year-old son (who was also a US citizen) with a drone strike several days later, also in Yemen.
but I don’t think your example is comparable.
Well, that's the thing. Precedent is a tricky mistress. Sure, Obama had what he considered very good reasons for crossing that line, but it set a precedent that any subsequent president could follow. It's like how George Washington set the precedent for presidential pardons by pardoning two men who were sentenced to be executed for protesting a tax on whiskey, and then a couple hundred years later, Trump was just straight up selling pardons to people for two million bucks a pop.
The point is, what seems reasonable when justified by a good president could easily be turned into something horrible by a bad president. The precedent set by Obama is probably not going to be as narrow as: "the US president is free to order the killing by drone strike of any US citizen who US intelligence agencies believe is a high ranking member in a terrorist organization (or a member of their family), as long as they are currently located in a middle eastern country", just like the precedent set by Washington wasn't: "The US president is free to pardon anybody who is accused of protesting a tax on whiskey".
They're not citizens if they're Nazis, but murder isn't the answer, let's grab one of the for profit prisons the right so loves to build, in the middle of Oklahoma or Missouri and invite the traitors to stay a good long time.
You're asking this question for no reason as the answer is clearly no.
And I don't really think you'll garner much sympathy for Anwar Al-Awlaqi's "murder". He left the United States and was orchestrating terroristic plots to murder innocent civilians in the United States. He was involved in two high profile incidents of terrorism as a commander for al Queda. Nidal Hasan's mass shooting at Fort Hood and an attempted bombing of an intentional flight from Amsterdam to Detroit.
I'm not looking to garner sympathy for Al Awlaqi. But it is a really fucking bad precedent to allow the president to kill people with no oversight, and if you're not sure why that's the case, maybe think on it a bit.
Up until the recent Supreme Court decision there was already oversight. Al Awlaqi was deemed to be an imminent threat and his killing was authorized by the National Security Council which would include 10-20 other individuals with access to superior knowledge of Al Awlaqi's actions and includes the Chairman of the Joint Chiefs of Staff, the Director of National Intelligence, and the Homeland Security advisor. All people tasked with positively identifying imminent national security threats. The country he was seeking refuge in had even ordered him to be captured dead or alive. And if you're questioning his involvement in al-Qaeda, he appeared in a video bearing al-Qaeda's emblem praising the two prior mentioned terrorists and called them students of his.
I think you misunderstand me: I'm not questioning his involvement in al-Qaeda. But the fact remains that he was a US Citizen. Being a citizen typically entitles people to certain perks, like due process in a court of law. This was denied to him, which is why the ACLU took up the case. The state has the power to execute someone, but up until this precedent was set, it was only able to legally do so after they had been convicted in a court of law. Intelligence agencies do not fall under that umbrella.
The country he was seeking refuge in had even ordered him to be captured dead or alive.
This is entirely irrelevant to US law. If, say, I was in Bolivia, and the Bolivian government had an active dead or alive warrant on some US expat, it would still be a capital crime for me to kill that man on Bolivia's behalf.
Fair enough. I just feel as though there are extenuating circumstances surrounding his specific case. I believe that his due process was rather not denied, but expedited due to his own behavior. His due process took place in a briefing room of national security advisors discussing what violence he could be capable of before international police were able to capture him. I believe that he knew that his status as a US citizen would shield him from military action for some time and would be willing to use that time to orchestrate further attacks on western civilians for as long as possible.
I liken it to a hostage situation at a bank. A group of people commit armed robbery and 2 of the 3 have killed civilians. So in response they were killed by a SWAT team. The ring leader is the only one left and is holding hostages in a room with no windows, but is able to communicate with a negotiator. The orchestrator tells the negotiator that he has no intention of killing people but is holding hostages to ensure his safety. There's already been lives lost so how willing are you to allow him to negotiate an arrest without further casualties? He's holding hostages with the threat of violence but hasn't killed anyone yet. Eventually he is killed without incident by law enforcement and the hostages are brought to safety. Is that situation a denial of due process by a court of law?
Sorry, I posted something else, but upon reviewing it, I felt that I had to make some major revisions, so I just opted to delete the post and make a new one instead.
"Due process" isn't really defined in the constitution, but it is mentioned in both the 5th and 14th amendments. Here's the text of the fifth:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Because it's not explicitly defined, the Supreme Court has had to interpret what "due process" actually means. Here's a breakdown of how it interprets procedural due process (process for civil and criminal cases):
https://en.wikipedia.org/wiki/Procedural_due_process
Of note is this bit:
At minimum, a person is due only notice, an opportunity to be heard, and a decision by a neutral decisionmaker.
This is a very low bar, especially when facing capital punishment. But in the case of Al-Alwaqi, even this low bar was denied to him.
I really like your metaphor about the bank robbers - it's a very good comparison on the basis of similarity of imminent public danger. The thing is, though, police actually have certain rules about when they can use deadly force, and though they very, very often get away with it even in situations where no deadly force is warranted, they are still occasionally indicted for it. Like Derek Chauvin, for example. One of the guiding lines for when use of deadly force is allowed is when there is an imminent danger either to the officer or to the public. But even this is subjected to review. Granted, it's not great review. But there's still something. There is no process for reviewing governmental use of deadly force on US citizens with drone strikes. In fact, since most military operations of this type are classified, we actually have no idea how many US citizens have been killed in this way.
It seems like we mostly agree then. I only disagree with the term "murder" when it's applied to Obama's authorization of the strike that killed Anwar Al Awlaqi. That carries with it the presumption of unjust killing that was being pushed by Republicans in the run-up to a 2016 election. It ended up being one of the few criticisms of Obama's time in office(in my opinion). Would I have liked him to take a more hardline stance on his Supreme Court appointment in 2016 and pressured RBG to step down prior to 2016? Yes. And would I have wanted him to put the nails to Republicans to get ACA though with minimal changes? Yes. But overall I felt that in the 8 years he was president we moved forward as a society.
Its not a perfect system, I'm aware. I actually wish that the SC would have taken up the case so we could have a ruling, but I do believe that this particular closed-door meeting constitutes due process. I think its an unfortunate concession to feel more protected from terroristic action, but necessary. I would feel way more comfortable if the term "public danger" could only be applied to specific individuals rather than broad descriptions(like the one you referenced from Trump). And could only be applied by a committee of legacy members of the federal government shielded from presidential or political appointments. Then any killing carried out should be subject to increased investigation and review to confirm the justification. Any deaths or casualties deemed unnecessary can then trigger criminal actions against those that authorized them.
I only disagree with the term “murder” when it’s applied to Obama’s authorization of the strike that killed Anwar Al Awlaqi.
Yeah, that's fair enough. "Murder" is a charged term. I prefer it because it emphasizes that it is an unlawful killing of a person, and I take issue with the denial of due process. I think it's doubly applicable when it concerns the US killing of his 16-year-old son.
I would feel way more comfortable if the term “public danger” could only be applied to specific individuals rather than broad descriptions(like the one you referenced from Trump).
Yup. Shit like this is exactly why I'm so cagey any time new precedents are set, because things that could be justified in certain hands can be tyranny in others. I feel like a deep familiarity with the law and US history naturally leads to a certain paranoia, and for good reason.
His due process took place in a briefing room of national security advisors discussing what violence he could be capable of before international police were able to capture him
Well that's actually where things get really, really tricky. See, normally "due process" is interpreted as a judicial process, wherein a person accused of a crime must be tried and convicted by a jury of their peers before sentencing can be carried out. I say "normally", because of a tiny part of the 5th amendment (highlighted in bold below):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Because the people who wrote the constitution thought that surely the people coming after them would know precisely what they mean when they say shit like "public danger", they never actually specified what constitutes public danger, or who gets to determine whether something qualifies. A good example of this is when Trump called a national emergency because he felt that too many people were illegally crossing the border between Mexico and the US in 2019. Surely, if something is bad enough to be considered a national emergency, it also constitutes a public danger, right? But in order for that argument to be made, it would have to be tested in the Supreme court. That means he would have had to order federal agencies to murder people crossing the border, and then be sued by someone who had cause, and have it appealed up to the Supreme Court.
This is why Obama's ordering of the drone strike on Al-Awlaqi was so complicated; it is the first time an American president has attempted to test this section of the 5th amendment. Unfortunately, the court tossed it on a procedural basis, which means they didn't consider any of the merits of the case, so it remains untested.
So, you very well might be right that a closed-door meeting of people representing various intelligence agencies could constitute due process. I really don't like the idea of living in that world, though. Because while I might agree with them in this case, it's not like they're subject to civilian review for their decisions. There's no jury who will decide whether the person they say is dangerous is actually dangerous.
It seems like we mostly agree then. I only disagree with the term "murder" when it's applied to Obama's authorization of the strike that killed Anwar Al Awlaqi. That carries with it the presumption of unjust killing that was being pushed by Republicans in the run-up to a 2016 election. It ended up being one of the few criticisms of Obama's time in office(in my opinion). Would I have liked him to take a more hardline stance on his Supreme Court appointment in 2016 and pressured RBG to step down prior to 2016? Yes. And would I have wanted him to put the nails to Republicans to get ACA though with minimal changes? Yes. But overall I felt that in the 8 years he was president we moved forward as a society.
Its not a perfect system, I'm aware. I actually wish that the SC would have taken up the case so we could have a ruling, but I do believe that this particular closed-door meeting constitutes due process. I think its an unfortunate concession to feel more protected from terroristic action, but necessary. I would feel way more comfortable if the term "public danger" could only be applied to specific individuals rather than broad descriptions(like the one you referenced from Trump). And could only be applied by a committee of legacy members of the federal government shielded from presidential or political appointments. Then any killing carried out should be subject to increased investigation and review to confirm the justification. Any deaths or casualties deemed unnecessary can then trigger criminal actions against those that authorized them.
Maybe he could change the rules of voting in congress from "Yea/Nay" to "Yes, harder daddy/No, don't fucking stop daddy" that's probably within the role of his office.
Fun fact, it doesn't have to be an amendment - it can just be a normal law. The check on judiciary is if Congress and the President both say, " you got it wrong SCOTUS" and pass a law that specifically says things are different.
Now I'm basing that on my 9th grade civics knowledge which could be wrong... But I thought that's why there were pushes for contraceptive laws post gutting of abortion rights. Basically telling the high court, this is what we're doing now.
My understanding of the ruling is that, no, a law cannot do this. The ruling is mostly a separation of powers argument. Basically, if the president is not above the law then that means that Congress can override the Constitution by writing a law that, for example, makes the President's constitutional duties illegal. Therefore, the president is allowed to officially do anything he wants limited only by the Constitution.
Obligatory: this is not an endorsement of the ruling and IANAL. It's an awful ruling and terrible for the present and future of our country. It's a violation of primary ideals of democracy and it needs to be overturned ASAP.
SCOTUS can simply rule the law unconstitutional...
Laws for contraceptive right are needed because SCOTUS ruled there weren't any laws saying it was a right, because they have the constitution backwards.
We need to just ignore Marbury at some point. These fuckers gave themselves judicial review, it's not an actual power they have.
Rights not enumerated... are no longer rights.
They don't give a shit if the rights are enumerated lol
That's a bit trickier, though, because SCOTUS already ruled on this, which means that their fucked ruling is now precedent. So any future challenges to a law passed by congress would be interpreted with that precedent in mind. If the composition of the supreme court changes, they could reverse their earlier rulings, but it's much less certain of an outcome than if there was an amendment to the constitution guiding future decisions.
Laws override precedent. The court's job is explicitly to interpret the laws made by congress. Precedent is simply the way that previous courts have interpreted the laws at the time. If the relevant laws to the case haven't changed since the previous case, that is where precedent comes in. If there are new laws written by congress then those are more important than precedent.
Another user brought up the idea that they might still try to rule the new law unconstitutional but that would be a much harder bar to achieve legitimately since the constitution is intentionally rather succinct. Of course if the court is corrupt and no one actually challenges their power I suppose they could say anything they want- precedent overrules laws, anything they don't like is unconstitutional, for the low low price of a vacation getaway you too can influence my rulings, etc. But legally speaking laws override precedent and doing away with a law because it is unconstitutional is an extremely high bar which can't realistically be met by the vast majority of laws unless the law directly goes against the few rules that the constitution establishes.
The court’s job is explicitly to interpret the laws made by congress.
No, not quite. The supreme court's job is to interpret the constitution, not laws made by congress. Any law made by congress can be subject to review by the courts if a case involving that law is brought before them. As an example, the Supreme Court ruled in Federal Election Commission v. Ted Cruz for Senate (2021) that a portion of section 304(a) of the Campaign Reform Act of 2002 was unconstitutional, specifically the part that established a $250,000 limit on the amount of post-election campaign contributions that can be used to repay a candidate for personal campaign loans made pre-election.
If Congress makes a law establishing certain limits on presidential authority, and that law gets challenged in court, future supreme court sessions will have to determine if it is constitutional. One of the many ways they do that is to look at past precedent from previous supreme courts. They're not bound by past precedent, but they make use of it quite often.
Iirc constitutional ammendments have to pass both congress AND the states. It's not an either or
Technically, it's an either / or process. It either needs 2/3rds of both houses, or 2/3rds of state legislatures have to call for a constitutional convention. You are right, however, in that after either hurdle is passed, it still needs to be ratified by 3/4 of the state legislatures in the union. That's where the equal rights amendment is now. It passed both houses, but has not yet met the 3/4 state legislature hurdle, so it's still in the pipeline 81 years after its proposal. Yay government!