Supreme Challenge

Just days ago, the United States Supreme Court said that Presidents are Kings, that their actions are largely immune to prosecution for things that would be crimes if done by others.

This is an amazing amount of power, as we are on track to learn once Biden finishes wasting this power doing nothing and leaves us with Trump as his successor.

“This nation was founded on the principle that there are no kings in America. … Each of us is equal before the law. … No one is above the law, not even the President of the United States. With today’s Supreme Court decision on Presidential immunity, that fundamentally changed. … For all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a President can do. This is a fundamentally new principle and it’s a dangerous precedent because the power of the office will no longer be constrained by the Law, even including the Supreme Court of the United States. The only limits will be self-imposed by the President alone.”

—US President Biden
in a July 1, 2024 address

Trump is not just Biden’s adversary, but he is the adversary of free society. He has said so. He has promised to be a dictator on day one, and he means it. He will not waste this newly conjured kingly power doing nothing, but rather undoing what Biden has done for gun safety, gender equality, environment, etc. Alongside all that, he will proceed immediately to do rampant evil, as laid out in detailed published plans that his ultra-conservative allies are calling “Project 2025.”

But Trump does not yet have this superpower—not until we elect him in the fall, if we are foolish enough to do that. And the polls say we are on track to being just that irredeemably foolish.

For a few months, though, such extraordinary power resides in Biden. And what will he do with this power? He rushes to promise us that he will not use it, not even for good, not even to assure that we do not end up with Trump as dictator. Nor to assure that these ridiculous changes by the Court are rolled back.

Note also that We The People are helpless here, glued to our TVs and phones, sifting news and social media for clues about what will happen to us. Give any one of us the power that the Supreme Court gave Biden, and we could do a lot of good, fix a lot of problems, and make the US safer for democracy than Biden is promising to do. We know that because Biden is promising to do nothing with this extraordinary power. That’s a pretty low bar for any one of us to exceed.

Failing to Protect Us

Biden wants to do things in the same old tired way. He wants to use his centrist tools of inaction, treating any real opportunity to make a difference as something not to do. Something too radical. Not his preferred way.

He’d rather labor slowly, expecting consensus with the MAGA crowd when there is none to be had, and he would rather not use the new tool, a tool that Trump and the MAGA-majority Supreme Court are counting on him not to use. They have given him a loaded weapon and are counting on him to deliver it, still loaded, still unused, to his successor, who will not leave it unused, who will in all likelihood use that weapon to assure he does not ever have a successor, that he just stays in power for life.

“At the outset of our nation, it was the character of George Washington, our first President, that defined the Presidency. He believed power was limited, not absolute, and that power always resides with The People. Always. Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that Presidency that are going to define the limits of the power of the Presidency because the Law will no longer do it. I know I will respect the limits of the Presidential powers that I have for three and a half years. But any President, including Donald Trump, will now be free to ignore the Law. I concur with Justice Sotomayor’s dissent today. … She said, ‘In every use of official power, the President is now a King above the law. With fear for our democracy, I dissent.’ So should the American people dissent. I dissent. ”

—US President Biden
in a July 1, 2024 address

We are in danger. Biden sees the danger, but does not see that he is part of the planned delivery mechanism for that danger, and that he is willingly and complacently accepting that role.

It's like Biden sees someone coming at him with a club or a knife in a dark alley and decides to use debate to protect himself even as someone is trying to hand him a pistol. All well and good if he's by himself and can take full personal responsibility for that ridiculous choice, but he is charged here with protecting the Constitution and the nation.

We Need Real Action

Strong language, politely delivered, will not protect us here. An offer of centrist consensus-building with the MAGA right will not protect us either. Oh, sure, he can probably find something to collaborate with MAGA about, but it will amount to mere distraction, one of those inconsequential things that still loses us our democracy even as it adds to his list of accomplishments.

Part of the problem is that Biden thinks that the doing of everyday horse trading is his job. At this point, it is not. He doesn't need more legislative successes. If the successes he has are not impressing anyone, adding more will not fix that. He has a lot of experience as a Senator, but at this point, we need him to stop being some kind of Senator in Chief and just be the Commander in Chief.

He needs now to secure democracy. That is his job. And it cannot be done by compromising with the party that seeks to disassemble democracy. It must be done by actually confronting that party, using any and all tools at hand. He thinks he's doing all he can, and maybe he is doing all he can. But he is not doing all that could be done. Inaction at this point is dangerous.

The tool he's been given, this new superpower, may not be Biden's preferred tool, but it IS adequate to the task. He is just choosing not to use it because he doesn’t like the look of it. That alone is sufficient reason for We The People to want a different leader, both now while that power exists and in the next Presidential term if possible.

Coaxing the Genie back into the Bottle

It’s good that Biden knows this new Presidential immunity poses a danger to democracy, but it’s not enough to just know it. He needs to insist that the Court take back that power now, not taking “no” for an answer.

Inaction is insufficient. Fortunately, given this new superpower, better options are available. I’ll offer a hypothetical, just for conversation, but hopefully it will demonstrate that stronger and more effective action is possible, and that it is neither necessary nor advisable to wait until the election.

After all, the election could go very awry. It is reckless to wait and hope it will not. This new reality entitles him to not just suggest but insist it be dealt with now. He can insist that the Supreme Court create ethics rules, term limits, and accountability.

So here is my hypothetical scenario for discussion:

Biden could explain that, in order to preserve Democracy and hold Monarchy at bay, he is ordering poor old Seal Team Six to hunt down and execute all conservative justices on the Supreme Court so that he can install judges with better sense, but that he has stayed execution of that action—for which he has absolute immunity—by 3 weeks, just in case the Court can move (expeditiously, for once) to find a better way to protect the Constitution and the nation with less bloodshed, for example by vacating their recent extraordinarily ill-advised and outright reckless ruling, removing the power of Presidents to take such actions confident of their immunity.

I like to think that such an approach would end with better accountability for Presidents and no one injured. It might seem an extreme way to get there, but it absolutely pales by comparison to what we should expect if Trump is elected.

Supreme Blind Spot

An action with parameters such as I’ve described would also help SCOTUS see the very real danger they’ve created. Fixing the problem would allow a happier outcome for us all, even SCOTUS themselves. They may not realize it, but they are in danger due to their own ruling in ways that they’re not taking seriously enough. They blithely discuss a President authorizing SEAL Team Six to take out political rivals, yet fail to see that they themselves might be such rivals?

It leaves me questioning not just their lack of neutrality, but their competence. It is short-sighted and dangerous, and poor judgment to the point of recklessness. I expect more of Supreme Court Justices.

Biden Isn't The Leader We Need

This is no time for Biden to sit on his hands. It’s a time for bold actions proportional to the danger, actions suddenly well within the scope of Biden’s new powers, and capable of being done with noble purpose, not that the new Supreme Court ruling requires noble purpose for President acts any more. That's part of the problem.

The Court has given Biden this power, so they must intend him to use it, right? Or maybe they just intended the power for Trump and calculated that Biden was too wimpy to use it.

I'd concur with them on that calculation, by the way. He is too wimpy. He's confirmed that by prematurely promising not to use it. That's a self-inflicted wound. He didn't have to say that, for the same reason that Presidents don't say “we won't strike first with atomic weapons.” It's not that we plan to, but we don't want our adversaries relying on our self-restraint.

I don't think Biden wargamed this. I think he just tied his own hands without thinking. Now, if he uses the power, even to help eliminate it, he'll have people fussing at him.

But so be it. I see it as dereliction of duty if he declines to use it. Letting his successor, probably Trump, be the first to explore this unlimited power is terrifying because it will be too late at that point for the public to react in any meaningful way to defend itself. It was reckless even just to say out loud that he wouldn't use the power.

I get why he wanted to. I get why it's uncomfortable. But right now he is the one we have elected to do the uncomfortable things. Better him than Trump. He, at least, is acting in the nation's best interests, not just his own.

Sadly, I’m pretty confident Biden isn't up to it. I think he'll disappoint us. Not just disappoint us, but outright fail us. He sees its use as lacking decorum, even as somehow he sees no lack of decorum in abrogating his responsibility to protect us and leaving us at material risk of a Trump presidency with unlimited power still in full effect.

He thinks by saying these are the stakes that surely no one will elect Trump. That's a dangerous game and one we're all too likely to lose.

Our Weakened Voting System

A partisan SCOTUS has weakened the Voting Rights Act enormously. States bent on voting rights abuse, bolstered by SCOTUS, have indulged gerrymandering and other actions that injure fair voter participation. Trump has raised baseless questions about election integrity. Republican media has echoed him to the point that Republican voters and lawmakers do, too. Fake electors were conjured using illegal schemes. Some have been brought up on charges or sent to jail, but Republican state lawmakers have worked to make it easier to do the same shady things legally this time around. Trump and GOP are mustering armies of lawyers to challenge elections this time around. Election 2024 will be about procedural tricks and challenges. That's a problem.

Telling us to go vote is just not adequate. Assuring us that we have the final say would be laughable if not so serious.

It will be great to rely on voting once a proper democracy is restored, but right now there is no guarantee of the vote’s outcome, or that the outcome won't be challenged, ultimately winding up in the Supreme Court to be overturned by the same folks that brought us the recent Presidential immunity ruling. They have meddled in elections before, and nothing stops them from doing it again, especially now that they have lost all shame.

Immediate action is needed to put things to right, while Biden has the power. He must use that power. Carefully. But he must use it. The safety of the Constitution and the nation demands it.

I doubt he is up to this most important of tasks. But I'll be happy to be surprised.

A Nation of Laws

Our nation needs to be a nation of laws. For everyone. No exceptions.

We already make exceptions for acts that are necessary. We have laws against murder, but we let people off if it’s self defense. We have laws about copyright violation, but we let people off for fair use. But we have not had laws that expressly said that people could walk free merely for who they are, only laws that insist they are doing things for good motive.

Will that scare some Presidents? It’s never scared them in the past. Or maybe the ones that it did scare didn't run for office. Good for them.

Presidents have always had to fear that breaking laws might get them in trouble and yet the nation has functioned well for two and a half centuries. Let Presidents continue to fear the Law. Let them continue to have to justify deviations.

If a President hesitates to start a war or authorize a covert action or explode a weapon of mass destruction, well, that’s good. Hesitation isn’t bad. I want a President to know that breaking the law cannot be a casual decision. It cannot be just another day on the job. They must be prepared to later justify questionable actions.

Having to account is part of the job. It is what makes us a democracy. The President is accountable to The People, not the other way around. Let Presidents assume that We The People understand these are hard decisions, and that we’ll make exceptions for technical breaches of law that are justly done in the best interest of the nation. But let them sweat a bit. That’s healthy.

By contrast, this newly conjured law, brought into existence out of nowhere Monday by a rogue Court, not Congress, that says Presidents must not be made to sweat, must not be asked to account, is not healthy.

Some have advanced the fairytale notion that voting is how Presidents should be called to account. But it is not a crazy hypothetical to think that a President might try to stay illegally in power. We’ve seen evidence that Trump might do this. He’s said aloud that it’s something he thought about.

And, anyway, there is a lot of damage that can be done in the four years between elections, if we're lucky enough to ever have them again after a President decides he wants to be a dictator. So elections are not an appropriate check. We need better.

Let Presidents sweat. We’ll be safer for it.

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