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.

My second-guessing is showing… again.

Yes, you know I’m a second-guesser.  Have been all my life.  I suppose you could say I’m “careful” like that, always weighing the options.

Like most of us Dems, I was super freaked out by the debate performance by Joe Biden last Thursday.  I stated that “even I was warming up” to the idea that he has to drop out and give someone else a better chance.

Here's the reason that changed my mind.  It is well worth the full 17:49 min listen:

Link here.

I realize now, thanks to Mika’s opinion editorial, that dropping out is the worst thing that could happen for the Dems.  Talk about a then “super fractured” party.  Bad, bad, and I mean bad idea.  DJT would benefit from our fracturing and we, in our haste and panic, would catapult the serial liar to a sure victory.

So, barring unforeseen circumstances, I will be sticking with Joe until the end.

What about you?  Will you be sticking with Joe until the end?  I firmly believe that if you/we don’t, like our mistake in 2000 with Ralph Nader, we will be partly responsible for a second+++? Trump term(s).

Make your case.

(by PrimalSoup)

Project 2025 in review

Political analyst John Oliver analyzes Milf Manor and Project 2025. His insightful analysis suggests that people ought not vote for DJT for anything.

Commentary on the USSC decision to neuter congress and federal agencies

As I argued yesterday, the decision by the USSC yesterday to eliminate the Chevron defense amounted to a massive shift of power from the president, congress and federal agencies to the USSC itself. That case is at least as damaging to democracy and the rule of law as the catastrophic 2010 Citizens United case that legalized large-scale corruption in American politics. 

The last time the USSC took this much power for itself, was in 1803 in Marbury v. Madison. That decision held that the USSC itself, not congress, the president or voters, had the power to decide what laws were constitutional and what ones were not.

The Nation writes about the impact of nullifying Chevron in the Loper Bright Enterprises v. Raimondo decision the USSC published yesterday:

We Just Witnessed the Biggest Supreme Court Power Grab Since 1803

The court has given itself nearly unlimited power over the administrative state, putting everything from environmental protections to workers’ rights at risk 

In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v. Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies.

Now, if you’re not a lawyer, that probably sounds bad, but mainly in a technical sense. Regulatory agencies like the Environmental Protection Agency and the Securities and Exchange Commission issue influential but deeply complicated rules, so it makes sense that somebody should have final authority over whether and how to enforce those rules. Since we have already made the disastrous decision to allow the Supreme Court to tell us who gets to be president and what women can be forced to do with their bodies, it might not sound like that big of a leap to also let the court decide how much lead can leak into our drinking water or which predators are allowed to sell mortgages.

The thing is: The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role in determining whether Congress was right to pass the law, or if the executive branch is right to enforce it, or how presidents should use the authority granted to them by Congress. So, for instance, if Congress passes a Clean Air Act (which it did in in 1963) and the president creates an executive agency to enforce it (which President Richard Nixon did in 1970), then it’s really not up to the Supreme Court to say, “Well, actually, ‘clean air’ doesn’t mean what the EPA thinks it means.”

For an unelected panel of judges to come in, above the agencies, and tell them how the president is allowed to enforce laws is a perversion of the constitutional order and separation of powers—and a repudiation of democracy itself.

But repudiating democracy to expand its own power is exactly what the Supreme Court did today in its ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron. In a 6-3 decision, which split exactly along party lines, Chief Justice John Roberts ruled that the courts—and, more particularly, his court and the people who have bought and paid for the justices on it—are the sole arbiters of which laws can be enforced and what enforcement of those laws must look like. Roberts ruled that courts, and only courts, are allowed to figure out what Congress meant to do and impose those interpretations on the rest of society. He wrote that “agencies have no special competence in resolving statutory ambiguities. Courts do.”

That is a naked power grab that places the court ahead of literal experts chosen by the president, who is the one elected official we all get to vote for. Who do you think has a “special competence” in resolving what the word “clean” means in the context of the “Clean Water” or “Clean Air” act—experts at the EPA or justices on Harlan Crow’s yacht? Who do you think has a special competence to resolve what “safe” working conditions require—experts at the Occupational Safety and Health Administration or justices who have never worked as much as a day at a job that requires them to be outside? Who do you think has a special competence to resolve what “equality” means under the Civil Rights Act for women in workplaces—experts at the Equal Employment Opportunity Commission or justices who have been accused of attempted rape?  

[The] ruling in Loper Bright effectively completes the suite of powers the Supreme Court has given itself to lord over everybody else. The court can now: veto acts of Congress as unconstitutional, decide who gets to be president [referring to the USSC appointing Bush to power in 2000], and decide what the president is allowed to do while in office.  

There is literally nothing that can be done to restore the rights the Supreme Court has taken away, or restore the power the Constitution gives to the people, other than reforming the Supreme Court and flooding it with justices who do not think they are kings. Court expansion is the only way to stop the Supreme Court. But to expand the court we have to elect Democrats, many of whom are also against court expansion. Then we have to push those Democrats to get rid of the filibuster, which many of them don’t want to do. Then we have to get Democrats to use their power. Then we have to get the Democratic president to put the right kinds of justices on the court. And we have to do it all over the unified objection of the Republican Party, the Christian right, the fossil fuel industry, the financial services industry, your racist uncle who watches Fox News, and Ice Cube.

Predicting the future

What is going to go away is things like environmental regulations, consumer protections, civil liberties protections, worker protections and financial regulations that experts have put in place. Experts write regulations to try to implement the incompetence, incoherence and amateur slop that congress routinely produces in the form of things called "laws." Now, the "experts", i.e., unelected federal judges, are going to simply push aside the actual experts and the idiots in congress. Now the USSC has the power tell us what all that congressional slop really means. 

What does all of this mean? 

What it all means is crystal clear. It means that kleptocratic authoritarianism is now fully empowered to rise and displace democracy, the rule of law and civil liberties. That has been the dream of America's radical right authoritarian wealth and power movement for decades. A gigantic authoritarian payoff is finally at hand. 

Kleptocratic plutocrats will now attack every regulation that stands in the way of profit. Kleptocratic Christian nationalist theocrats will now attack and obliterate the last vestiges of church-state separation. Taxpayers will pay both the plutocrats and the theocrats. Consumers will get lied to and ripped off. Elections will become a sham. Government will become kleptocratic. Corporate profits will soar. The environment, e.g., our drinking water and air, will be more aggressively polluted. Secularism will be slowly wrung out of American society, commerce and government and replaced with a bigoted Christian Taliban implementing Christian Sharia law. Wealth inequality will continue its ruthless rise, leaving a few very rich elites and their hired goon enforcers to rule everyone else with an iron fist. Finally, an impenetrable veil of secrecy will shield all of the sleaze, corruption, fornication, treason and abomination that wealthy and/or powerful elites will conduct their daily business behind, much like as is the case today (but just a lot more so). 

How things are going to play out for regular

people in the new, post-Chevron world?

I hope not, but it is now possible

In other words, what is this USSC decision means is that we are all well and truly screwed, but elites are well and truly empowered and unleashed.

Q: Will there be a serious power struggle between the USSC vs. congress and or the next president in 2025-2026?

He got better!

Here is Joe Biden at a rally in North Carolina yesterday. He woke up and got over his cold.

Regarding DJT, there even was a chant of LOCK HIM UP!! LOCK HIM UP!! LOCK HIM UP!! 

Lawrence O'Donnell has an interesting take on the debate: We live in a country where most commentators declared the liar the debate winner 

Right, DJT did not win the "debate." Democracy and the rule of law lost to that exercise in asymmetric warfare, dark free speech vs. honest speech.

It will be interesting to see how or if the public opinion chances according to post-debate polls.

Big SCOTUS decision coming Monday…

Yes, the one we’ve all been waiting for: 

Does a President of the U.S. have absolute immunity?

The immunity case in Donald J. Trump v. United States will center on one simple sentence: “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” -constitutioncenter.org

So, what do you think?  If yes, should Biden order Seal Team 6 to go in and assassinate DJT as an official act of saving democracy?  Okay, I kid (barely). 🤨

Yes, that is a ridiculous statement on its face.  But in actuality, from what I can tell, we are dealing with exactly that scenario. 

What makes something an official act?  Need it be in the Constitution to be an official act?  Otherwise, how is it determined?

The nightmare awaits.  Discuss or Disqus... pick your poison.

(by PrimalSoup)