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DOWN WITH THE KINGS: SCOTUS’ PRESIDENTIAL PROTECTION MUST GO  
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Thom Hartmann
August 21, 2024
The Hartmann Report
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_ It’s supported by more than half the Democrats in the Senate,
along with independents Bernie Sanders and Angus King; not a single
Republican had the courage or patriotism to sign onto it…. _

, Image by Wolfgang Eckert from Pixabay

 

Republicans this week asked the Supreme Court to throw 40,000 Arizona
voters
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the voting rolls. This is _not_ the sort of case the Framers of the
Constitution meant for the Court to be deciding; for the past few
decades, since rightwingers took over the Court, it’s been regularly
overstepping its charter.

Similarly, Donald Trump’s criminal attempt to overthrow our
government on January 6th is now back before
[[link removed]] Judge
Tanya Chutkan’s court, although whatever decision she renders will
instantly be appealed by Trump’s lawyers back to his friends on the
Supreme Court. Tragically, justice will be a long time coming.

And now Senator Chuck Schumer and Congress want to do something about
it.

WHEN THE SIX CORRUPT AND WELL-BRIBED REPUBLICANS ON THE US SUPREME
COURT GAVE DONALD TRUMP IMMUNITY FROM PROSECUTION FOR CRIMES HE
COMMITTED WHILE PRESIDENT, THEY NOT ONLY “BROKE” THE LAW BUT
DEFIED THE CONSTITUTION ITSELF. THIS OFFENSE TO OUR REPUBLIC’S RULE
OF LAW DEMANDS REVERSAL, AND CONGRESS, AT THE MOMENT, IS THE ONLY
VENUE WHERE THAT CAN BE DONE.

In this case, the Republicans on the Court created a new doctrine of
presidential immunity out of thin air. Not only is this a violation of
American law, but it also contradicts the authorities the Constitution
gave the Court. As Justice Sonya Sotomayor pointed out in her dissent
(see below), it’s quite literally unprecedented, a massive power
grab, and a corruption of our republican Constitution.

THERE IS A REMEDY, BUT TO UNDERSTAND IT YOU MUST FIRST UNDERSTAND THE
NATURE AND CONSTITUTIONAL POWERS OF THE COURT ITSELF, AS I LAY OUT IN
DETAIL IN _THE HIDDEN HISTORY OF THE SUPREME COURT AND THE BETRAYAL
OF AMERICA
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While the Constitution created the House, Senate, and the Presidency
and Vice Presidency, its authors left the definition of the size,
nature, and budget of the Supreme Court to Congress itself. _The
Supreme Court didn’t even come into being until Congress passed a
law defining it._ From Article III, Section 1
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“The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.”

Thus, on September 24, 1789 Congress created the Supreme Court via
the Judiciary Act of 1789
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“Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the supreme court
of the United States shall consist of a chief justice and five
associate justices, any four of whom shall be a quorum, and shall hold
annually at the seat of government two sessions…”

NOT ONLY WAS THE SUPREME COURT TO BE THE CREATION OF CONGRESS, BUT THE
FRAMERS OF THE CONSTITUTION FURTHER SPECIFIED THAT IT WAS TO OPERATE
DIRECTLY UNDER THE SUPERVISION AND REGULATION OF CONGRESS ITSELF,
WHICH EVEN HAD THE POWER TO DEFINE ENTIRE AREAS OF LAW WHERE THE
SUPREME COURT COULD BE FORBIDDEN FROM RULING. PER ARTICLE III,
SECTION 2
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“[T]he supreme Court shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.”

THIS WAS BECAUSE THE FRAMERS OF THE CONSTITUTION WANTED THE COURT TO
BE THE WEAKEST, LEAST POWERFUL BRANCH OF OUR GOVERNMENT FOR THE SIMPLE
REASON THAT — ITS MEMBERS BEING APPOINTED, AND FOR LIFE AT THAT —
IT IS THE ONLY BRANCH ENTIRELY UNACCOUNTABLE TO _WE THE PEOPLE_.

In his and Madison’s sales pitch for the Constitution, Alexander
Hamilton, on May 28, 1788, wrote in _Federalist 78
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courts, including the Supreme Court, were the _weakest_ of the three
branches created by the Constitution. After all, at that time it
wasn’t envisioned that they would ever have the power to strike down
laws passed by Congress or create law or policy out of thin air (like
saying the president has immunity from prosecution for crimes).

“[T]he judiciary is beyond comparison the weakest of the three
departments of power,” he wrote, adding in the same sentence that
“it can never attack with success either of the other two
[branches].”

He even footnoted that sentence with a quote from the famous French
judge Montesquieu, who had first famously articulated the idea of a
separation of powers between governmental branches as a check and
balance. Hamilton’s footnote read:

“The celebrated Montesquieu, speaking of them, says: ‘Of the three
powers above mentioned, the judiciary is next to nothing.’”

DON’T TELL THAT TO THE REPUBLICANS ON THE COURT, HOWEVER; AFTER
YEARS OF STROKING AND BRIBES FROM RIGHTWING BILLIONAIRES, THEY’VE
COME TO THINK OF THEMSELVES AS THE _TRUE_ KINGS AND QUEENS OF
AMERICA RATHER THAN MERE SERVANTS TO THE CONSTITUTION AND OUR
NATION’S LEGAL PROCESSES.

Consider, for example, that notorious partisan liar Sam Alito when, a
year ago July, he wrote  in _The Wall Street Journal
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“No provision in the Constitution gives [Congress] the authority to
regulate the Supreme Court—period.”

Or two weeks ago’s absurdity
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Neil Gorsuch had the audacity to warn President Biden, who just
proposed a binding code of ethics for the Supreme Court as well as
term limits, that he should “be careful.”

As noted above, the Constitution did _not_ create the Supreme Court;
it merely identified it and authorized Congress to bring it into
being. It did this on September 24, 1798 — about _half a
year_ after the first Congress was sworn into office on March 4, 1798
and President George Washington was sworn into office on April 30,
1798 — when Congress also simultaneously created the rest of the
federal court system.

EVEN WORSE, THERE IS NOT A SINGLE PLACE IN THE CONSTITUTION WHERE THE
SUPREME COURT IS AUTHORIZED TO EITHER CREATE OR STRIKE DOWN LAWS.

Creating laws or policy for the United States is an authority given
exclusively to Congress.  All laws must originate, in fact, with the
House of Representatives because they’re elected every 2 years and
thus “closest to the people,” then go to the Senate, and generally
only become law with the approval/signature of the president.

SIMILARLY, STRIKING DOWN ALL OR PARTS OF LAWS OR CREATING POLICIES OUT
OF WHOLE CLOTH —LIKE “PRESIDENTIAL IMMUNITY” — IS AN AUTHORITY
THAT IS ALSO ONLY GIVEN TO CONGRESS BY THE CONSTITUTION. THERE’S NOT
A SINGLE WORD IN THE ENTIRE DOCUMENT AUTHORIZING THE SUPREME COURT TO
DO SUCH THINGS.

In 1803, in the case of _Marbury v Madison_, the Supreme Court took
onto itself the limited power to strike down laws which they believed
conflicted with the Constitution. President Thomas Jefferson was
horrified, writing to his old friend Virginia Supreme Court Justice
Spencer Roane:

“If this opinion be sound then indeed is our Constitution a
complete _felo de se_ [a suicide pact]. For intending to establish
three departments, coordinate and independent, that they might check
and balance one another, it has given, according to this opinion, to
one of them alone, the right to prescribe rules for the government of
the others, and to that one too, which is unelected by, and
independent of the nation. …

“The Constitution, on this hypothesis, is a mere thing of wax in the
hands of the judiciary, which they may twist and shape into any form
they please.”

BUT EVEN AT THAT, THE 1803 MARSHALL COURT DIDN’T TRY TO CREATE NEW
LAW OUT OF THIN AIR LIKE THE SIX REPUBLICANS ON THE COURT DID LAST
MONTH WHEN THEY CREATED A BRAND-NEW NEVER-BEFORE-SEEN-OR-CONSIDERED
DOCTRINE OF PRESIDENTIAL IMMUNITY.

Even Chief Justice Roger Taney’s 1856 _Dred Scott v
Sanford_ decision which declared that every Black person, even in the
north, should become the property of a white person (which President
Lincoln explicitly chose to ignore) was grounded in references to the
Constitution’s original protections of slavery.

Similarly, Chief Justice Morrison Remick Waite’s 1886 comment
reproduced in the headnote to the _Santa Clara County v Southern
Pacific Railroad_ case, which later courts exploited to grant
“personhood” to corporations (as I examined at length in my
book _Unequal Protection: How Corporations Became “People”
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was based in the Bill of Rights and the 14th Amendment.

And those were the two single most egregious decisions of the entire
19th century! Arguably the most controversial decisions of the 20th
century were _Brown v Board_ and _Roe v Wade_ and, again, both
were grounded in the Constitution itself.

While the opinion, concurrences, and dissents in _Trump v United
States
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giving Trump immunity for “official acts” — includes 219
references to the “Constitution,” the only direct quote used to
justify giving the president immunity to commit crimes while in office
is from Article II: “[T]he executive Power shall be vested in a
President of the United States of America.”

EVERYTHING ELSE IS A TWISTING AND PERVERSION OF PREVIOUS CASES,
OPINIONS, AND THE MEANING OF “EXECUTIVE POWER.” THE SIX REPUBLICAN
JUSTICES PULLED THIS DOCTRINE ALLOWING FOR A CRIMINAL PRESIDENCY OUT
OF THEIR OWN BACKSIDES; IT HAS ABSOLUTELY NO BASIS IN LAW, HISTORY, OR
THE CONSTITUTION.

AS JUSTICE SONIA SOTOMAYOR WROTE IN HER DISSENT
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“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, 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 COURT NOW CONFRONTS A QUESTION IT HAS NEVER HAD TO ANSWER IN
THE NATION’S HISTORY: WHETHER A FORMER PRESIDENT ENJOYS IMMUNITY
FROM FEDERAL CRIMINAL PROSECUTION. THE MAJORITY THINKS HE SHOULD, AND
SO IT INVENTS AN ATEXTUAL, AHISTORICAL, AND UNJUSTIFIABLE IMMUNITY
THAT PUTS THE PRESIDENT ABOVE THE LAW. …

“Argument by argument, THE MAJORITY INVENTS IMMUNITY THROUGH BRUTE
FORCE. Under scrutiny, its arguments crumble. To start, the
majority’s broad ‘official acts’ immunity IS INCONSISTENT WITH
TEXT, HISTORY, AND ESTABLISHED UNDERSTANDINGS OF THE PRESIDENT’S
ROLE. MOREOVER, IT IS DEEPLY WRONG, even on its own functionalist
terms.

“Next, the majority’s ‘core’ immunity IS BOTH UNNECESSARY AND
MISGUIDED. Furthermore, the majority’s illogical evidentiary holding
is UNPRECEDENTED. Finally, this majority’s project WILL HAVE
DISASTROUS CONSEQUENCES FOR THE PRESIDENCY AND FOR OUR DEMOCRACY.”
(emphasis added)

SHE NOTES THAT IN FEDERALIST 69, “ALEXANDER HAMILTON WROTE THAT
FORMER PRESIDENTS WOULD BE ‘LIABLE TO PROSECUTION AND PUNISHMENT IN
THE ORDINARY COURSE OF LAW,’” ADDING THAT THE CONSTITUTION GIVES
LIMITED IMMUNITY TO _CONGRESS_ UNDER THE SPEECH AND DEBATE CLAUSE,
BUT THERE IS _NO SUCH GUARANTEE_ FOR THE PRESIDENT.

This issue of keeping presidential immunity out of the Constitution
was not an accident or oversight by the Framers; it was debated at
length during the Constitutional Convention in the summer and fall of
1787 and the delegates (including Hamilton) decided to omit any
criminal immunity whatsoever for the president.

AS SOTOMAYOR CONTINUES
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“In sum, the majority today endorses an expansive vision of
Presidential immunity that was never recognized by the Founders, any
sitting President, the Executive Branch, or even President Trump’s
lawyers, until now. Settled understandings of the Constitution are of
little use to the majority in this case, and so it ignores them.”

IN RESPONSE TO THIS BIZARRE DECISION WHICH THE REPUBLICANS ON THE
SUPREME COURT HAVE FORCED ON THE AMERICAN PEOPLE, SENATE MAJORITY
LEADER CHUCK SCHUMER HAS INTRODUCED THE _NO KINGS ACT
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The proposed law reverses the Supreme Court’s grant of criminal
immunity to Donald Trump and all present and future presidents, as
well as — using the “exceptions” clause of Article III, Section
2 — stripping from the Court the power to reverse or even rule on
the law.

It’s supported by more than half
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Democrats in the Senate, along with independents Bernie Sanders and
Angus King; not a single Republican had the courage or patriotism to
sign onto it.

CALL YOUR TWO SENATORS AND THE HOUSE MEMBER WHO REPRESENTS YOU AND
DEMAND PASSAGE OF THE _NO KINGS ACT_ AND LEGISLATION TO GET THE
CORRUPT REPUBLICANS ON THIS RUN-AMOK COURT UNDER CONTROL.

As Justice Sotomayor wrote
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for our democracy,” we must _all_ dissent.

_Thom Hartmann is a NY Times bestselling author of 34 books in 17
languages & nation's #1 progressive radio host. Psychotherapist,
international relief worker. Politics, history, spirituality,
psychology, science, anthropology, pre-history, culture, and the
natural world._

* SCOTUS
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* Presidential Immunity
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