have been deep into us constitutional history for some stuff i’m working on and one thing that i am angry about all over again is the ahistorical and extra-constitutional vision of separation of powers roberts deploys in trump v. us
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I sat in on a panel with Jane Manners from Temple U, who is an historian writing about the separation of powers in the 19th century. She might be someone you could reach out to. The whole panel (which included Jack Rakove) is appalled at the ahistoricity of SCOTUS, despite the originalism.
Nixon v. Fitzgerald, the case that the majority purports to apply and extend, was a plurality decision. Both the plurality and deciding opinion emphasized that immunity was necessary to prevent a multiplicity of civil suits. That concern obviously does not apply to DOJ criminal proceedings.
One of the great themes of the Roberts court is the idea that nobody should be watching the watchmen, that the system won't work without elite impunity, and Trump v US is maybe the crowning moment of that monarchical worldview.
Right. Part of Alito/Thomas originalism is that once they invent whatever it is they want a text to mean, there can never be any further discussion or change about it. As if the Great Oz Has Spoken.
The book Antidemocratic by David Daley traces a lot of John Roberts' path to doing this to us. Roberts is the architect of a lot of what is wrong in US government today, especially the awful Citizens United decision, which was basically staged. The Trump v. US immunity decision is beyond the pale.
Full semester or Winter Study? Through what department? Are you going to live in Williamstown? You’ll have an excuse to buy so many new jackets and coats.
Roberts doesn’t deserve his impartial reputation. At every opportunity in his career he has sided with power and should be as despised as Thomas and Alito, if only because of his effectiveness of pushing America towards fascism.
Well said. Roberts is the milquetoast face of maga extremism. He's presentable and doesn't have the villainous look of Alito, Thomas etc. So, he sneaks by and does incredible damage.
This book by Founding Director of Perimeter Institute and documentary filmmaker Howard Burton dives deep into constitutional history and is highly recommended: https://ideasroadshow.com/exceptionally-upsetting/
The Cult of the Presidency is completely ahistorical. This idea that even the LAW cannot constrain the President in his duties because it's so vital that he be free to act without distraction is insane. Kings wish they had that kind of prerogative.
I think some of this has to do with modern communications and the idea that the president can personally direct a military operation, rather than merely hiring and firing generals and occasionally giving them vague suggestions about what to do; Henry VIII could order up executions but not bombings
The need for the president to be able to make split-second life-or-death decisions without anybody getting in his way didn't really exist until the invention of MAD and nuclear footballs
as mentioned in Unclear and Present Danger (MIB episode), the USA is heading for a South American autocracy model, and I think it's safe to say that the Presidential Republic is a completely discredited governmental form at this point
South America traditionally has VERY strong Legislature and Judiciaries, and that explains sometimes the opposite problem of too much use of impeachment powers. Even if, yes, I see this dumb idea of separation of powers being mentioned in Brazil all the time.
The Founders were steeped in English history and presumably had Charles I & Oliver Cromwell in mind when they tried to constrain the president. I find it odd that the system didn’t evolve like UK, Canada & Aust/NZ where Congress is sovereign and a PM & cabinet are chosen from the House/Senate.
The United States technically had a version of that, under the Articles of Confederacy (the guiding document prior to the Constitution). There was no central executive, but there was a President of the Congress, who had additional duties.
Perhaps that’s why they abandoned it. My Revolutionary history is a bit rusty. Of course, events like the Civil War and the two World Wars all vastly expanded the executive under the President.
The turnover of presidents, I think, made the various bits of overreach seem to be that of the man, not inherent to the office, so the urge to formally constrain wasn’t as strong.
That wasn't the case by the time of the founding. Charles I was beheaded 150 years before the constitution was written and the Glorious Revolution a century prior cemented Parliament as the real center of power. George III had less power than a modern US President.
The English context is most important for understanding the ideology of the English colonists. I would rather say Enlightenment political ideas than ideas tied to the French Revolution, which was a true world historic shock.
Because the Declaration of Independence is directed at the King it's often misunderstood that the colonists were really offended by the crown's government, the emerging office of the Prime Minister that combined legislative and executive power in one man.
That was true of Britain, but Europe was a different story. The Czar of Russia has almost unlimited power, although still in the thrall of the nobles as is today governments being the thrall of oligarchs.
You might try to control a king but you had to destroy not just topple, if you wanted him gone
What’s to understand? Alexander Hamilton used the word “vigorous” once to describe what he thought the executive should be, and 6 wackos on SCOTUS took that to mean “immune from criminal prosecution”.
I was reading up on the context to "birthright citizenship" in the 14th Amendment after Trump so casually floated repealing or modifying it. It's sad how much they profess a motivation to defend the Constitution and then proceed to piss on it and on American tradition & jurisprudence.
It's like conservatives had one job, to defend traditional American values, and then they decided to go to all out war against traditional American values & die on the hill of very foreign and ahistorical values.
It's bizarre, and whatever they are, it's definitely not conservative!
just to explain this a bit more: the constitution does not create a system of separated powers where each institution has exclusive right over its own domain , instead, the plain letter of the document gives overlapping and shared powers to separate institutions
the senate ratifies treaties and confirms executive appointments, the president has a legislative veto, the courts can intervene to force compliance with the constitution from either of the other branches, etc.
"the courts can intervene to force compliance with the constitution from either of the other branches"
I really don't think this part is in the Constitution though, not explicitly. It was a coup already when Marshall declared himself to have this authority, and nobody took it seriously until Taney.
I mean, duh. Rs have been trying to accumulate unaccountable power since Nixon. It took 60 years, but they did it. Meanwhile, the Ds have formed a committee to discuss the problem, and determine if perhaps a committee to do something about it is appropriate. They'll know in 6 months, maybe.
If it’s not already on your list, you really ought to read up on Ex parte Young, especially if you’re digging in on Trump v. US. The opinion’s emphasis on “immunity” creates some serious tension with the Ex parte Young doctrine
As things stand now, it seems as though the President is immune from prosecution for crimes he has already committed in the scope of his official duties, but NOT immune, under Ex parte Young, to declaratory actions seeking to prevent future criminal activity. Creates a very perverse incentive!
The founding fathers went to great pains to expressly lay out the supreme courts power as they were terrified of the type of judicial tyranny england used to control the colonists.
What we live in today is literally that fear realized
Exactly, and he also states in emphasis good behavior is a necessary condition for anything following.
Also, it should tell you something that while he makes an argument for the implied authority, it shows how far outside if consensus he was given article three is a literal express powers list
My contracts professor liked to say there are only three meaningful rules of statutory interpretation: (1) read the statute; (2) read the statute; and (3) read the statute. SCOTUS seems to have forgotten this when it comes to the Constitution.
i think it’s worth reading john yoo’s scholarship to see where a lot of roberts’ ahistorical theory comes from. not the only source of course but yoo lays out an executive power theory that resonates with the rw of this court.
you’ll see a lot of relevance just by reviewing his cv. but his books the powers of war and peace and crisis and command capture his theory (which just to be clear i reject).
yoo owes his reputation, as it were, to the torture & geneva conv memos, some of the worst legal advice ever to be offered in the USG. but he is really an exec power fundamentalist (at least when it comes to rw presidents).
When I read the name, I was like "No, that can't be..." and then read this one and am currently blown away that Yoo has had that kinda impact. Time is a flat circle for these jackanapes.
It's really wild after growing up being taught separation of powers as part of the system of checks and balances. And Roberts is all no, no actually each branch has unconditional power and cannot be checked by the others. Defeats the whole purpose. 🙄
Accountability's key here. *Most* of Roberts Ct's bad SOP opinions (thinking esp. of unitary executive) misuse the concept of accountability (saying UE enhances accountability & misreading history to that effect too). But in Trump v US, they conveniently don't mention accountability at all!
Judicial Review is not either expressly or implied by the constitution. Its comes from a decision so bad the party that won the case disavowed it and it went unutilized for about 60 years if memory serves
"[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts."
Paraphrasing, Biden can't cancel student debt, but he can send special forces to kill or capture student debt collectors. David French. Yep, pretty much.
You're one of my favorite journalists in the world and there aren't many people I really admire. You're one of them. Looking forward to reading what you write on the topic. It's a great and important topic. Thank you.
It actually drives me a little nuts that comparative political scientists routinely say "separated powers" when what they really mean is the ability of institutions to block each other, or *checks & balances*
It's hilarious that when you type president not a king Washington into the regular, not-AI-enhanced Google search, you get a 2007 Heritage Foundation article, before they went completely off their nut.
The issue that vexed the framers most was how to limit the powers of the presidency while allowing the executive to remain effective. They have to be rolling in their graves. They absolutely feared the rise of a corrupt executive.
He’s (Roberts) absolutely compromised. “His) Court will go down as one of the most anti-Democratic ever, if liberal democracy survives the coming Exec Branch.
wellllllll .... but the entire trial of Charles I was very clearly ultra vires. It was a revolutionary act that came with the thinnest, flimsiest veneer of proceduralism.
What goes around comes around - Cromwell (the instigator) was later posthumously executed and his head stuck on a pike at Westminster palace by Chaz II’s buddies.
Soooo much more fun than a Constitutional Amendment
To quote a Monty Python tune, "The most interesting thing about King Charles I is that he was 5'6" tall at the start of his reign, but only 4'8" tall at the end of it."
"....and in the silence that followed, the only sound that could be heard was a solitary giggle FROM.....OLIVER CROMWELL, LORD PROTECTOR OF ENGLAND..."
Well yeah sure but there was a whole civil war. That's like saying that the 14th amendment was ultra vires. Big constitutional changes get established by force...
No, no and no. They are not comparable. I can assure you the trial of Charles I has no constitutional relevance in the UK. The monarch in the UK is immune from public and private criminal acts. The men who executed Charles I were also hunted down and we’re brutally dispatched.
Sorry, but even after reading that I am unsure of what you mean by innovation. If you mean that if a King goes too far he’s susceptible to Revolution, sure. But that’s no less true of a President in a country with more firearms than people, and that’s no longer a legal point but a practical one.
There's a circularity argument in this that's undefeatable, you cannot try a Monarch in a court that exercises power only by virtue of his/her warrant on the basis that they provide the power that you're exercising. And which, they can obviously remove!
In 'The Queen vs Burrell' over the alleged theft of Diana's property by her then butler, the trial collapsed when the defendant asked that HLM be called as a witness in his defence because she was immune to cross-x. His defence being that she had told him to 'take some things that are dear to you'
Fair enough. By "the royal model" I really meant "the innovations in controlling the behavior even of monarchs that the framing generation would have been very aware of"
Like late momma Used to say one Set of Laws4 the Rich who Can Buy Their Freedom, while Different 4 the POOR! NO JUSTICE NO PEACE INEQUALITY IN JUSTICE SYSTEM! TRUMP PROVED THAT YOU CAN ERADICATE YOUR CRIMINALITY WITH IMMUNITY PER SCJUSTICES!! NO JUSTICE NO PEACE!
If you haven't seen it yet: Here's Prof Kate Shaw on how Roberts specifically distorted the legacy of Justice Jackson in that opinion. https://www.youtube.com/watch?v=KwtC3Si43QI
Is a problem the asymmetric utilization/deployment of that power by political parties, ie it would be unthinkable for Leftwing Real Politik because norms but within thought that Rightwing skirting of proceduralism is expected because norms?
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https://bsky.app/profile/johnhpage.bsky.social/post/3leuleqi26s2w
#TheInsurrectionIsOngoing
What you described in your reply is the presidential system, which Latin American countries originally copied from the US in the 1820s.
Kings WERE the state. King if France or England was actually England or France. That is why they couldn't be charged with treason, only deposed
Sound familiar?
Correct me if I am wrong.
The US Constitution wasn't the brainchild of the founding fathers alone.
It's ideals can't be implemented if the system is gamed from within
You might try to control a king but you had to destroy not just topple, if you wanted him gone
It's bizarre, and whatever they are, it's definitely not conservative!
I really don't think this part is in the Constitution though, not explicitly. It was a coup already when Marshall declared himself to have this authority, and nobody took it seriously until Taney.
https://www.acslaw.org/expertforum/the-specter-of-dictatorship-and-the-supreme-courts-embrace-of-the-unitary-executive-theory/
What we live in today is literally that fear realized
Like they want to intepret do and do nots in enforcement? Sure. But striking down a law thats passed the house, senate, and a presidential veto?Naw
Also, it should tell you something that while he makes an argument for the implied authority, it shows how far outside if consensus he was given article three is a literal express powers list
It's very clear the intent the Constitution authors intended from those letters and other background docs.
Like the Bible it is easy to subvert it when you want to
"Check and balances."
Oh yeah! I remember that!
https://bsky.app/profile/cantorsparadise.bsky.social/post/3lfnnxvcmgc26
Keep on climbing down the rabbit hole, see you on the outside
They went completely culty and idiotic at some point
This episode may not be available outside the UK (or without a VPN) yet. They release them on BBC Sounds first, then later on the podcast apps.
Soooo much more fun than a Constitutional Amendment
🎶jurisdiiiiction🎶
*say goodbye, to his head*
I’ve been engrossed with the performances
If you haven’t watched, you might enjoy 👹
https://en.m.wikipedia.org/wiki/Wolf_Hall_(TV_series)
https://www.emptywheel.net/2024/12/30/the-opportunity-costs-of-conspiracy-theories-about-merrick-garland/
https://www.emptywheel.net/2025/01/08/why-and-how-to-hold-john-roberts-accountable/
Her talk begins at about the 11 minute mark
Hamilton, looking at the Presidency as enabled by Trump v. US: "Haha fuck yeah!! Yes!!"
Hamilton, looking at Trump as President: "Well this fucking sucks. What the fuck."