The Supreme Court weakens federal regulators, overturning decades-old Chevron decision

Criminal acts and intent don't matter. What matters is whether it's an official act. If it's an official act, it's either absolutely immune or presumptively immune, depending on whether the act is a core function of the presidency provided by the Constitution. If not, it depends on whether it "poses any dangers of intrusion on the authority and functions of the executive branch," a new test that is extremely broad and for which no one knows the answer. The Court will be the one deciding on that answer.

The immunity for official acts can indirectly shield the POTUS from prosecution for criminal acts done unofficially. This is because any official actions needed as evidence to prove unofficial criminal acts cannot be used in court. Justice Barrett and others used bribery as an example in their dissent, but there could be many other scenarios. For instance, a POTUS accepting a bribe is a crime and isn't protected by immunity. However, if the POTUS then takes official actions to fulfill that bribe, those actions are considered official conduct and can't be used as evidence of the bribery.

In essence, the POTUS has almost absolute immunity for official acts, and for unofficial acts, prosecutors are greatly handicapped. This protection extends to former POTUSes for actions taken during their term in office.

EDIT - adding this: Roberts' opinion stated that Trump working with DOJ officials to push for investigations into certain state election results is an "official act". Basically, directing executive members to take actions is an official act. Thus, it has been interpreted that Nixon asking the AG to fire the special prosecutor investigating Watergate would be immune. Even asking the DoD to shoot down a plane with political rivals would be an official act, and would be immune.

 

My understanding is that the Seal Team 6 hypo is not definite and still has to go through lower courts to determine whether the circumstances has shown that it is an official act.

I'm not ignoring the chilling effect and the logistical hurdles it places on prosecution, though for Bribery I mentioned in the other thread that the bar was already high to enforce from the McDonnell v US ruling.

In Menendez's case, his bar was lowered because gold is naturally dense...

 

Not definite on the SEAL team 6 scenario, but also not that difficult to make it count as an official act. And of course the motive behind it can't be brought up.

 

…but you love the expansion of the president‘s immunity? You only argue points that you can easily defend or that are against democrats.

 

Directing DoD is an official act. Let's assume it falls under presumptive, not absolute immunity. Prosecuting that does pose "dangers of intrusion on the authority and functions of the executive branch", so it's immune. It's possible that the Court sees it differently. But Roberts also provided the example I mentioned that makes it pretty clear that the POTUS directing the DoD is an official act and falls under absolute immunity.

Some might reasonably ask why the Court would grant such broad immunity. Their reasoning (which is close to Trump's team's reasoning) is the executive shouldn't be constrained for it to function properly and there are Constitutional remedies to constrain a POTUS. Basically:

1. Why it's necessary - the executive should have extensive power to act without constraint when necessary (paraphrasing the argument for a powerful executive).
2. Why it's okay - if the executive overreaches, there are constitutional remedies: a) The 25th Amendment allows the Cabinet to remove the POTUS. b) Congress has the power to remove the POTUS through impeachment.

The idea that #2 is enough is naive. It's simply not worth tilting the scale this far to allow a more powerful executive (for those who think the executive should have more power to execute faster and respond faster). The disincentive isn't enough. Since a former POTUS remains immune for official acts even after leaving office, the worst-case scenario for an official act is that a POTUS loses their job, not their livelihood. Trump's team didn't even argue for such broad immunity - they merely claimed a sitting POTUS couldn't be prosecuted but could be once removed from office (by Congress). The Supreme Court went further, stating that a former POTUS cannot be prosecuted at all for official acts.

P.S. The very hypothetical about SEAL Team 6 was discussed during the Supreme Court case, and Trump's legal team argued that such an action would be an official act and thus covered by presidential immunity. That concern was brought up, and the majority is okay with it.

 

I don't have much of a lean one way or the other on the immunity decision. I don't see it as a radical shift. Sovereign immunity has been a thing longer than the United States. As I pointed out earlier, judges have immunity for official acts, prosecutors have immunity for official acts, legislators have immunity for official acts. Police officers have qualified immunity for official acts. If anything, I would find a ruling that said there is no Presidential immunity for official acts far more surprising.

The Democrats are further from the right libertarian position on many important economic and governance issues than the Republicans, so of course I criticize them more. I was against Trump's bump stock ban, that was a Republican administration position, and I am glad the SCOTUS got it right. I'm against Trump's support for abortion, though I think he is correct in that it should rightfully be decided by the states absent a fetal personhood bill or amendment. I'm against Trump's protectionist economic policies, his support of oil and gas subsidies, numerous things in Project 2025. Part of it is there is no shortage of posts attacking Trump, what do I have to add that hasn't been said 30 times.

 

I don't think the concept of "soveriegn immunity" is quite as widely accepted. As I heard another talking head mention this morning, if this was widely and historically accepted then Ford wouldn't have pardoned Nixon. While presidential immunity has been a practice while the President is in office it hasn't been for once they left office. McConnell himself made that argument following the second impeachment.

I will say it again this shouldn't be about the person but about the principle. This ruling applies to all presidents of all parties. Not just Trump.

 

I think the bigger issue isn't that there is immunity for official acts, it's that you neuter the ability of courts to investigate whether something was an official act.

Is an act that uses official powers of the presidency for blatant corruption still an "official act?" Previous standard would have left it to a court to test this and explore the motives.

This ruling says the President is totally protected from those inquiries because his motives can't be explored and his subordinates in the executive can't be used as evidence.

So if the president said to the AG, "Hey, I want you to order the arrest of my opponent and put him in a cell with someone instructed to rape him" you couldn't even question that order. He's using official powers and he's talking to someone in his administration. So boom, immunity.

That's never been something we accepted as a country before.

Without the ability to test the official act for corrupt purpose you are effectively saying the president can do ANYTHING he wants as long as he uses executive branch officers to do it and uses executive power to accomplish it.

 

Another example...

If POTUS orders the DA to arrest anyone in the country with an AR-15, the courts would of course rule he doesn't have the power to do that, it violates the constitution. But if his party won't impeach him, what is the recourse against a President who simply says "I don't care what the court orders me to do, I'm issuing an executive order after consulting with White House Counsel."

You are saying, and many here are cheering, that there is literally no recourse against a President that chooses not to be constrained by any law or court order as long if he is beyond the reach of impeachment.

 

There has never been a President charged for an official act taken while in office. It didn't happen after Waco or Ruby Ridge. It didn't happen after Guantanamo Bay. It didn't happen after Trump did a drone strike on an Iranian general. There are just no circumstances where the President has used the ordinary powers of his office and then been criminally prosecuted for it. Nixon wasn't charged for Watergate, so we don't know whether or not he could have been or what immunity arguments would have arisen. All of that was short circuited by Ford pardoning him.

That portion was a response to the separately quoted portion of Andre's post that I only argue points I can easily defend or against Democrats. There is a reason it was not discussing a ruling generally.

 

The true power in the ability to define what is official act and what isnt
So . .the Supreme Court because the leash on the presidents neck
or the lapdog

Rocket River

 

Except that Ford felt it was necessary to pardon Nixon showed that he and his advisors believed the prosecution of Nixon was a distinct possibility.

I noted this in another thread but part of why this is unprecedented is Trump by his own description is an unprecedented President. Just because something never happened before doesn’t mean that such action is unconstitutional and even the Founders considered this possibility.

Fair enough and I think you would agree with that this ruling’s implication goes far beyond the current or prior president.

 

Everyone has immunity, so it's nothing new. It's okay for the POTUS to kill political rivals? What? This is what dangerous rationalizing looks like. Bad bad.

 

Sovereign immunity applies to the state, not individuals.

Police officers can be prosecuted for breaking the law while on duty, with intention and excessive use of force being key considerations. But the POTUS gets absolute immunity for official acts, where intention and motive don't matter. This means the President could order the DoD to kill a political rival and stay immune from prosecution.

Police officers have qualified immunity, which still allows for accountability when they violate clearly established rights. In contrast, absolute immunity for the President removes this safeguard, leaving no legal recourse for actions that could seriously harm individuals and the nation.

Other officials such as judges, lawyers, police officers, mayors, governors, and legislators do not receive such absolute immunity. If they committed similar acts, they would face legal consequences. Arguing that these aren't official acts for those professions misses the point—it's an apples-to-oranges comparison. Absolute immunity for the President is far more extensive and dangerous than the limited immunities other officials have, who still face legal consequences for intentional criminal acts.

Granting the President absolute immunity shifts power dramatically, concentrating substantial authority in one person without accountability. This undermines the checks and balances fundamental to our democracy.

While the President can be checked by impeachment and removal from office, this process has limitations. Impeachment is political and requires significant political will, which might not always exist, especially in a divided political climate. Moreover, removing the President from office doesn't address the need for legal accountability for criminal actions—it merely removes them from power.

So, absolute immunity for the President is extremely dangerous. It contradicts the democratic principle that no one is above the law and threatens the balance of power and the integrity of our legal system. Impeachment is important, but it cannot replace the need for legal accountability.

Last week, the POTUS couldn’t kill you without cause and remain immune, but today, he can. That is clearly a dangerous and radical shift.

 

The grand jury was preparing to indict Nixon for the cover-up. Ford's pardon specifically mentioned avoiding a prolonged spectacle of a criminal trial. You know, that's too bad. If the case went forward, the Supreme Court would likely allow it and not rule that the POTUS has absolute immunity. But it might not matter anyway, since today SCOTUS has little respect for precedent.

 

@Amiga

What do you do for a living? You're very knowledgeable. I unfortunately have become too lazy to research a lot of these topics and have to bow out. I'm sure a lot of you guys do your research obviously but I think lawyers in particular have an advantage on these political topics

 

The prosecution of Trump was not only a possibility, it actually happened. Then his team made an argument for immunity that was partially granted. As I said, we don't know what immunity arguments may have been granted or denied in Nixon's case, because President Ford's pardon made the issue moot. People could have charged Bill Clinton with perjury. He was impeached on that very issue. There was an extensive investigation done. They didn't charge him, so we will never know what immunity issues he would have raised or how they would have been decided. People could have charged GWB with torture (18 U.S.C. 2340A). It wasn't charged, so we will never know what immunity issues he would have raised or how they would have been decided. Now someone has decided to charge a former President for acts committed while in office, he did raise immunity issues, and so those issues had to be decided. The court decided in such a way as I would think is more reasonable than the alternative. Had they decided the opposite, most likely every President would have been liable for things like negligent homicide, for example, after bombing people that turned out to oops not be the bad guys after all.

It's unprecedented because no prosecutors chose to bring charges before.

I think every appellate court ruling goes beyond the particular case in question.

It applies to both. I gave you several examples that are based on the concept of sovereign immunity.

The President was only given absolute immunity for official acts that fall within the core uses of Presidential authority (or whatever specific language they used to that effect). He was only given presumptive or rebuttable immunity for other official acts (one might say, qualified immunity). No immunity for unofficial acts. Just like police officers in qualified immunity cases, we will have to see how this plays out on a case by case basis.

Judges and prosecutors and legislators do receive absolute immunity for official acts.

We can't really say if power has been shifted at all, as there is nothing to compare it to. See the examples of past possible Presidential criminal behaviors I cited above. None of those presidents suffered criminal consequences for their acts. How would new presidents continuing not to suffer criminal consequences for official acts be a shift?

I don't believe murdering someone without cause would fall under the official duties of a POTUS under anyone's reasonable definition. We have already had Presidents kill US citizens without due process and suffer no legal consequence of doing so, because they said the person was an enemy combatant. President Obama wasn't charged for killing Americans in drone strikes. Given that, I don't see the radical shift that you do. The court has just put what was previous practice into writing and it seems jarring.

 

but . . . but . . . Seal Team 6!!

 

The SC did order Nixon to turn over tapes of his conversations with executive branch staffers under subpoena.

Am I misunderstanding something or doesn't the new SC ruling we have say that those tapes would be totally protected.