A president who is willing to do those things, and has a military willing to carry those orders out, isn't likely to be stopped by the court telling them it's illegal.

The fact that the courts have explicitly legalized these blatantly criminal acts is what gives the military the cover and the imperative to dutifully carry them out.

Bad logic.

Is someone more or less likely to perform such an act if there's a possibility of legal consequences? If not, then we don't really need courts at all, do we?

Yep, and it's speculation at best. She's making statements she knows to be nonsense - like, those assume the court will find anything to be an official act, which is nonsensical.

Read the whole thing rather than the hot takes.

https://prod-i.a.dj.com/public/resources/documents/SCOTUSTRU...

I don't think it is, to be honest. All three of those examples are clearly official acts. The President is commander-in-chief of the military, and is also responsible for granting pardons. The key piece of the ruling which lends credibility to her examples is that any motive or details behind the official acts are immune from scrutiny.

The only real difference is whether the acts are official or not. So the President is allowed to order the military to assassinate a political rival, but not to pay a private hitman to do so.

It's a pretty ridiculous and indefensible stance from the majority opinion.

They are not clearly official acts. It's going to be years of decisions and debate to define official acts.

As an example, the fact he's in charge of the military doesn't make everything he asks them to do official because he is obliged to follow the constitution. There are arguments to make against what I just said. It's as clear as mud once you start going through concrete scenarios.

This is as the Imperial Supreme Court wants it, so that it will come back to them every time an important decision needs to be made. This enhances their power and ability to shape events. Murkier is better.

It also makes it easier for partisan rulings on a case-by-case basis. If defendant is on your team: allow it, if not, issue a self-contained ruling (or don't pick up the case at all if lower courts ruled against them).

We have front-row seats to how empires decline and fade away. I guess those who missed the 20th century decline of the British Empire (culminating in Brexit) can study this one.

Yep, peak hypocrisy.

The constitution says very little. Most legislation says very little. I don't think they are grabbing for power, they are just stating the obvious - this isn't covered, so I guess we'll cover it.

So the prior textualism was just tactical?

Textualism doesn't mean they say "i don't know, the answer to this very specific question isn't insanely obvious from reading the text".

Well, to be fair, the first two examples she uses are very likely official acts and the third requires an official act to be bribery in the first place.

Do you really want this kind of thing to be speculated to be possible? The court should be putting the squash on this kind of thing full stop, not giving any wriggle room at all. The fact that you have to argue that a supreme court justice is speculating on the downstream effects of a monstrous decision should tell you something is very wrong. Step back and think for one second.

It's been speculated on for ages. Humans tend to deal with things as they come up. The entire system is built that way. We don't write legislation that deals with every single possibility, we deal with it in the courts as it happens. It seems to basically work.

> like, those assume the court will find anything to be an official act, which is nonsensical.

But the Supremes haven't said what they think an official act is; that's a matter for the court of first instance, according to the Supremes.

To me, in the UK, it looks like vandalism. There's no clear law on what constitutes an official presidential act, and until there is, the Pres is beyond the reach of the law.

I don't think these very senior lawyers are fools, I don't think they made a mistake. They've deliberately fucked-up the US legal system (even more than it's already a mess).

That's not how it works. If he does X and the court decides X is not an official act, he isn't immune. He doesn't get to say "well it was undefined at the time".

Read the actual ruling. They haven't fucked up anything. They haven't actually said much. Any time you read media coverage of a supreme court decision you've already made a mistake. You have to read the source material.

Serious question: how is assassination an official act? Asked another way, under what constitutional authority is the president charged with assassinating political leaders inside the United States?

I'm not saying a president couldn't try. I can imagine that. I cannot understand how it would be an official act. If the president runs out of Kleenex and opts for toilet paper instead, that is not an official act merely because he is president.

If Lincoln had a Seal Team Six, and ordered said team to take out Jefferson Davis, would Lincoln have been open to prosecution, or immune as he had been undertaking an official act as commander in chief?

That's the problem. The ruling provides no guidance whatsoever, so as long as a President can make the case, it's an official act.

No, that's not right. The court will decide, and they do give some thoughts/guidance.

Well no, you’re making an assumption with how a court would rule in this situation.

There is nothing mandating that a court has to put careful consideration between what is and isn’t official business.

No, wrong. The comment says the court will rule, not how they'll rule. How on earth do you read that comment and think it says how they'll rule?

The Courts are dumb and often change their minds on appeal. All of this ends up at the Supreme Court where the clerics now rule.

Anything which reaches the supreme court is complicated, by definition. On top of that the world changes and the people sitting on the bench change. So yeah, the court changes it's "mind" from time to time.

The idea that they are "clerics" because they make a decision you disagree with is nonsensical.

Complicated by definition means absolutely nothing. Most cases are not complex but were decided on political ideology. This is why they tend to flip decisions. Anyway the current crop are indeed clerics.

https://verdict.justia.com/2023/05/03/how-did-six-conservati...

> how is assassination an official act?

In the majority's opinion they stated that any act carved out by the constitution for the president is an official one.

The constitution establishes the president as the commander in chief of the armed forces. If the president orders a member of the military to assassinate an individual, he's exercising his role as the commander in chief, an official act, and is thus criminally immune.

The slightly longer form also includes that the majority held that for official acts, a president's motives can't be probed by the courts, so whether the president ordered Seal Team 6 to murder a political rival for self-interested reasons, that it was an official act is the only thing that need be considered.

> Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.

There is no way that Sotomayor genuinely believes this. If Trump becomes president and is prosecuted again, I guarantee she'll argue that his crimes don't fall under the President's official duties.

And she'll be on the minority side. Case decided, six to three, and she gets to write another dissent that will be ignored.

I don't understand how you could not believe this under the majority opinion. The constitution is very clear that supreme command of the armed forces falls to the Commander-in-Chief. The President. It must follow that when the president directs the armed forces he is performing an official action that is exclusively given to him via the constitution. If that is not an official action, then what is? There is nothing in the constitution directing how the president should direct the armed forces. And it follows from that if its an official action then he is immune.

If Donald Trump ordered the military to manicure the lawn at Mar-a-Lago, would that be considered an official act? Obviously not. The Emoluments Clause dictates that all federal officeholders cannot benefit from their positions besides their direct compensation.

I don't think that the Domestic Emoluments Clause's concept of "Emolument" goes so far as to apply to the death of a political opponent. Suppose that I'm a manager at a corporate job and the second-most likely candidate for a promotion. If I order a subordinate to kill the most likely candidate and I get promoted, I don't think that the prosecutor would think to add a "prohibited employment compensation" charge on top of the inevitable "conspiracy" and "first degree murder" charges.

(In a previous version of my comment, I thought that the previous commenter was referring to the Foreign Emoluments Clause and cluelessly asked whether there was a domestic version.)

Different emoluments clause: "he shall not receive within that Period any other Emolument from the United States, or any of them."

My bad. I have now edited my comment accordingly.

> If I order a subordinate to kill the most likely candidate and I get promoted, I don't think that the prosecutor would think to add a "prohibited employment compensation" charge

They would if you had used your company credit card to pay a hitman though. Perhaps this isn't the strongest argument for why the military for a political assassination isn't an official act. My point still stands though that all limitations of the powers of the President are still there, so not everything they do will be considered an official act.