About the immunity ruling

My projection was that most likely the USSC would punt on the immunity case and remand it to lower courts to delay making a final decision. That this case was not decided months ago indicated to me that the USSC very much wants to protect DJT. 

Now that the decision is here, some initial reactions. We are truly and undeniably witnessing the empowered rise of full-blown, kleptocratic authoritarianism in real time. The kleptocratic plutocrats are cheering the Corner Post case.

• The first case the USSC released today, Corner Post, Inc. v. The Board of Governors of the Federal Reserve just blew another massive hole in the ability of federal agencies to regulate. The USSC is tearing down the entire foundation of executive administrative regulatory power. Judge Jackson wrote a long dissent, which includes these comments:

More than half a century ago, this Court highlighted the long-recognized “hazards inherent in attempting to define for all purposes when a ‘cause of action’ first ‘accrues.’” Crown Coat Front Co. v. United States, 386 U. S. 503, 517 (1967). Today, the majority throws that caution to the wind and engages in the same kind of misguided reasoning about statutory limitations periods that we have previously admonished. 

The flawed reasoning and far-reaching results of the Court’s ruling in this case are staggering. First, the reasoning. The text and context of the relevant statutory provisions plainly reveal that, for facial challenges to agency regulations, the 6-year limitations period in 28 U. S. C. §2401(a) starts running when the rule is published. The Court says otherwise today, holding that the broad statutory term “accrues” requires us to conclude that the limitations period for Administrative Procedure Act (APA) claims runs from the time of a plaintiff ’s injury. 

The Court’s baseless conclusion means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face. Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both Government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline. 

The majority refuses to accept the straightforward, commonsense, and singularly plausible reading of the limitations statute that Congress wrote. In doing so, the Court wreaks havoc on Government agencies, businesses, and society at large. I respectfully dissent.

At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright (the decision yesterday that blew the Chevron defense and neutered federal agency rule-making power] have authorized has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in the our economy and our society. It is utterly inconceivable that §2401(a)’s statute of limitations was meant to permit fresh attacks on settled regulations from all new comers forever. Yet, that is what the majority holds today.

The seething hostility of the radical, authoritarian Republican USSC to government and regulations cannot be any clearer. This case is another major, full-blown attack on the rule of law and democracy itself. Regulations are crumbling before our eyes. This is what the business community has bough and paid for in government. Maybe now the staggering importance of an imperial USSC will start to become clearer for people reluctant to see and/or admit what is happening with this corrupt, authoritarian court. 

• Comments to be added after the USSC immunity opinion is made public. I am following the flow of commentary at Scotus Blog, about the best USSC blog out there. 

 

The immunity case, Trump vs. US, was just released. The WaPo writes:

Justices: Presidents entitled to immunity for clearly official acts

The high court’s 6-3 ruling sends the case back to the lower court to determine when and whether Trump will go to trial

The holding of the USSC opinion that protects DJT's criminality includes these comments:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Pp. 5–43.

Sotomayor wrote in a long dissent (about 60 pages, joined by the other two Democrats Kagan and Jackson joining the dissent):

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. 

But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

Sotomayor included this statement of fear:

With fear for our democracy, I dissent.

Sotomayor writes that the majority’s grant of immunity “reshapes the institution of the presidency” and “makes a mockery of the principle” that “no man is above the law.” This is as authoritarian as the law can get without pronouncing that DJT has absolute power for life. America's kleptocratic dictator supporters and enablers are cheering the fall of the rule of law in real time right now. Our democracy is crumbling before our eyes.

This effectively delays until after the election federal prosecutions of DJT and maybe also the Georgia state criminal prosecution of DJT. Now, all DJT has to do is get re-elected and pardon himself. DJT definitely would try to make the federal criminal prosecutions go away.

So, my prediction was basically correct. The hyper-partisan, authoritarian Republican USSC punted to lower courts, giving DJT a massive win in terms of delay and evasion of the rule of law.