What is the functional difference between the President having immunity for “official acts” and the powers granted to the German President under Article 48 of the Weimar Constitution?
What is the functional difference between the President having immunity for “official acts” and the powers granted to the German President under Article 48 of the Weimar Constitution?
For reference: Article 48 Wikipedia I’m trying to understand how anyone with any knowledge of the history of dictators could possibly justify granting a president unchecked “official” power so if anyone has any actual theories I am ALL ears.
As a German, well, I don't understand enough about the US side of things to answer to this, but I do always get spooked when I see nations pulling shit like that.
And, by the way, I do hope the USA finally get 9/11 under wraps this year: https://www.whitehouse.gov/briefing-room/presidential-actions/2023/09/07/notice-on-the-continuation-of-the-national-emergency-with-respect-to-certain-terrorist-attacks-3/
The rationale is that the powers aren't unchecked, but that the check for official constitutionally listed acts of the president is Congress, not the courts.
Article 48 gave the presidentisl office the power to unilaterally bypass the legislature.
This supreme Court ruling delineates the line between the individual and the office with regards to the judicial system, not the relationship between the office and the other branches like article 48 did.
Rather than granting new powers or preventing restraint of the executive branch, it purely limits the consequences the individual can face out of office.
The concept of presidential immunity existed prior to this case.The ruling essentially listed three categories and their immunity status with regards to the courts. In my opinion, two of them are reasonable and the third shouldn't exist.
It's reasonable to me to say you cannot sue the president for vetoing a bill, or criminally prosecute the president for commanding the military. The constitution says the president can do those things, and that the check on presidential power is congressional acts including impeachment. The office of the president or the government as a whole may be prosecuted, and Congress and the courts can hammer out the exact meaning of the core powers, but the individual is only liable if Congress uses their power to assert that something was definitely not a valid presidential act.
It's reasonable to me to say that being the president doesn't grant you broad immunity for non-president things. The president does not have the constitutional authority to drink and drive, so if they do they're just a person subject to criminal prosecution.
It's unreasonable to me to say that in areas where the president acts officially, but their authority is shared with Congress or an inherent power of the office that they might not have immunity depending on how it impacts the role of the president.
It's weird to say it, but in this case I agree more with Coney Barrett that the more appropriate test is to see if the law applies to the official act and then determine if in this case it would interfere with a delineated core power.In her own separate concurrence, Justice Amy Coney Barrett agreed with the majority “that the Constitution prohibits Congress from criminalizing a President’s exercise” of his core constitutional powers and “closely related conduct.” But she would have courts approach the question of immunity for other official acts differently, by focusing first on whether the criminal law under which a former president is charged applies to his official acts and, if so, whether prosecuting the former president would interfere with his constitutional authority.
Applying that principle to the facts of this case, she suggested that at least some of the conduct that serves as the basis for the charges against Trump – such as his request that the speaker of the Arizona House of Representatives hold a special session about election fraud claims – would not be immune. “The President,” she concluded, “has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
https://www.scotusblog.com/2024/07/justices-rule-trump-has-some-immunity-from-prosecution/
I ultimately think that it would have been better to say that the president (individual) cannot be criminally prosecuted for exercising specifically enumerated constitutional powers unless Congress has impeached and removed from office and send it back to the lower court. They're perfectly capable of deciding if a particular act was an executive overreach or not on a case by case basis, and the fact that this has never happened before is a pretty solid argument against needing to worry about a "chilling effect" on the exercise of presidential power. The president should be chilled, it's practically in the constitution. Any power not given to the government is reserved to the people, clearly implying that the constitution should be read as stingy with power to the government, and generous with rights to the people. The president, as a member of the government, should be encouraged to worry about wandering around in legal grey areas.
It’s reasonable to me to say you cannot sue the president for vetoing a bill, or criminally prosecute the president for commanding the military. The constitution says the president can do those things, and that the check on presidential power is congressional acts including impeachment.
Yea I dunno ... why not just have no immunity? It's not like the whole idea of the separation of powers is to ensure power is freely exercised ... it's the opposite.
If a president has to pause for a moment before doing something to ask their lawyer if it would be a crime ... maybe that's the point of having fucking legal system and constitution?
Sotomayer's dissent provided pretty good evidence (AFAICT) that the framers would have put criminal immunity into the constitution if they thought it wise ... because it was a known idea at the time that had been done by some states regarding their governors. They didn't. Cuz that's the whole point ... "no man is above the law".
And as for Congressional impeachment being paramount ... I'm not sure that's either necessary or even consistent with the Constitution (again, as Sotomayer's dissent addresses).
For example ... Article 1, section 3 (emphasis mine):
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
In short (AFAICT) ... impeachment and general legal liability are not the same thing ... and the latter totally still applies.
Beyond all of that, the general law probably achieves everything that the majority's decision was worried about (while they were conspicuously not worried about all of the other things that one should be when crowning a king). Civil immunity is a well established doctrine (government's just too big and complex a thing for civil responsibility to make sense). And while I don't know anything about it, there are similar-ish ideas around criminal responsibilities that just don't make sense for the very nature of a governmental responsibility, war, I think, being a classic example. Sotomayer again speaks about these things.
Overall, once you start to squint at it, the whole decision is kinda weird. To elevate the separation of powers to the point of creating literal lawlessness seems like plain "not seeing the forest for the trees".
The bit I wonder about, without knowing US Constitutional law/theory well at all ... is whether a democratic factor has any bearing. A criminal law is created by the legislature, a democratic body. And also caries requirements for judgment by jury. So couldn't an argument be made that the centrality of democratic power in the constitution cuts through any concerns about the separation of powers that the SCOTUS had, and enables democratically ordained law to quash concerns about whatever interference the judiciary (or legislature?) might exercise with the executive.
I know there's the whole "it's not a democracy, it's a republic" thing ... but the constitution dedicates so much text to establishing the mechanisms of democracy (including the means by which the constitution itself can be altered) that it seems ridiculous to conclude that democratic power is anything but central.
Those are all great points.
To be clear, I don't agree with the notion that the president requires immunity in order to be "undistracted" while being president.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can't do that thing is either unconstitutional, or doesn't apply to the president.
If they're impeached it wasn't a valid use of their powers and they are potentially personally criminally liable.
I feel like it's less traditional immunity and more an acknowledgement that the legislature can't criminalize things in the constitution, and someone can't be guilty of a crime under an unconstitutional law.It's the not-enumerated official acts bit that's wonky to me.
I don't think anything that trump did would even remotely fit under an enumerated power of the president, which are pretty clearly and narrowly defined. Nowhere does the constitution empower the president to futz about with elections. If Congress delegated that power to the president, then the president is acting in the bounds of a law they can break.
Well...you made me feel one iota less justified in sending my dad a shirt with Bootlicker in large font.
I mean, if he's even sorta a boot licker, that's pretty awesome.
Hopefully that "lol, nice" makes up for that iota. :)
I'm pretty sure their actual justification is that turning the United States into a dictatorship will really own the libs.
Honestly? It would, they would own themselves too but they can't understand that
Well you see the president is elected democratically unlike in Germany where the Nazis were never....oh....
A broad coalition of the liberals, centrists, conservatives with the Nazis who were willing to outlaw and arrest a fifth of the government for the final vote to function.
The functional difference is that the Supremos set themselves as the arbiters, so while Trump will get immunity for anything, Biden will get immunity for nothing.
Fun fact: The original 'spam' was posted once; just, it was posted to hundreds of USENet readers at the same time. Hundreds, Carl!
As I understand it, POTUS has absolute immunity for core acts as specifically defined in the constitution. There are other official acts the president may conduct that are not strictly defined. There's a presumed immunity for these actions but that does not mean they can not be challenged or that a president can not be impeached. And then there are actions a person holding office as president of the US may conduct outside their role as president which are by no means immune from criminal prosecution.
So, from what I'm reading, this ruling hasn't really changed very much. It actually seems to me that it holds a president more accountable for their actions as it strengthens the guidelines they must follow as president.
Now, how congress goes about utilizing these guidelines in a bipartisan matter is 100% always going to be a concern. There's going to be a lot of back and forth and forth and back to more clearly define what "official acts" are. Because our politics are so toxic now, this is likely going to have a monumental impact on the momentum of the already agonizingly slow to do anything federal government.
So, it's up to voters to decide if they want Washington to work for them in a meaningful dinner table manner or perpetually act as a court to hold politicians accountable for their actions. We still, currently, have the choice to move forward or stay stuck in 2020.
In regard to the Reich Constitution, POTUS has always had most of these rights. In instances of political unrest or natural disaster, the president has power to declare an emergency. Funding still has to be agreed upon by Congress.
Also, FWIW, SCOTUS very clearly states in the middle of Page 8 "The President is not above the law."
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.
I think the intent of this ruling, and certainly the current interpretation is that anything anywhere in the scope of POTUS responsibilities is now above the law. So Trump can, and is going to argue that his insurrection was within his scope of protecting elections and therefore he has full immunity. He has also filed paperwork trying to have his election interference felony convictions overturned based on yesterday's ruling. They have made POTUS a king at the discretion of the court, instead of the beholden to the constitution.
In short, this wouldn't be a big deal if politicians were acting even half way in good faith. But since Trump, the GoP and Supreme Court have not been acting in good faith at all, making it terrifying as to what they may do
In the sense that the Constitution is above the law, yes.
The president is not obligated with protecting elections so that should not fall within absolute immunity. At best, the president appoints election-related officials and may pressure them to do something about an election, But acting unilaterally is not something a president is supposed to do. (In my opinion)
Edit: Having now read the syllabus and opinions a couple times, Roberts has stated what I have. It's up to judicial review to determine if what he's done is within his core duties or peripheral duties.
I'm super confident this guy will be found guilty of election interference. When is a much bigger unknown.
I think this makes sense, it will be interesting to see how it plays out. I don’t agree with some of the things I’ve seen online about having seal team six assassinate political rivals just because one uses the power of the office does not mean it is an official act of the office. That is where courts would decide which is true. Previously they were making the argument for absolute immunity for everything, the Supreme Court said that isn’t the case.
I think there is trepidation because there aren’t precedents yet and this is happening in the context of January 6 and the big lie. I don’t think it ends Trump’s trouble, his speaking to the public that day was on the behalf of DJT, not the president. It gets more murky if someone questions not sending the national guard, was that an official act and just a bad call? The hope would be some sort of reasonable president standard is created but really who knows.
The president’s power is still checked via judicial review and congressional impeachment.
Why should anyone believe either of those processes are possible anymore, now that the president has been granted the power to coerce members of both branches through threat of force?
These actions were already possible. Nothing has been granted that wasn’t already there, but now we know a president can’t be sued/charged for official acts after they leave office. And it appears the burden of proof is, as always, up to the prosecutors to prove. So, once again, the courts will have to establish precedence over what they consider to be official and unofficial.
If a POTUS is immune can they be impeached? Or maybe impeached but not removed? As typically if one is immune it means they cannot be charged. If one cannot be charged how can they be impeached/removed?
The republicans have officially made impeachment a purely political performance, just like they've treated it for decades.
How very idealistic and nice of you.
I didn’t say it wasn’t a terrible situation. I truthfully answered the OPs question that it’s not Article 48 as there are still opportunities for review by the other branches of government.