Robed Collaborators
In the early days of his second term, some worried that Donald Trump would cause a constitutional crisis by defying the Supreme Court after it blocked one of his several blatantly illegal actions. Such a crisis may yet materialize, but thus far the court has invited crisis not by blocking the Trump administration’s actions but by authorizing them.
There were clear signs the court would play enabler even before Trump was reelected. In the July 2024 Trump v. United States decision, concerning Trump’s attempt to stop certification of the 2020 election results, the six conservative justices, with no constitutional basis or precedent, granted the president immunity for crimes committed “within the outer perimeter of his official responsibility.” This included absolute immunity for acts central to the president’s Article II powers and “presumptive immunity” for other official acts.
As Jack Goldsmith argues, the court’s ruling didn’t just offer Trump a shield against future prosecution; it handed him a sword. Writing for the majority, Chief Justice John Roberts advanced a “maximalist theory of executive power.” An adherent of the ahistorical “unitary-executive theory,” Roberts contended that “the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” including broad discretion in enforcing (or refusing to enforce) the laws and directing and removing subordinates in the executive branch. As Peter M. Shane points out in The Atlantic, Roberts all but seconded Trump’s illiterate claim that “I have an Article II, where I have the right to do whatever I want as president.” But both Trump and Roberts ignore the parts of Article II that make clear the executive branch is meant to be made up of “executive departments” structured and vested with authority by Congress. “This is not at all a one-person branch of government,” Shane writes, “and its design is not the prerogative of the president.”
At the time of the ruling, many observers threw cold water on dissenting liberal justices’ worries that it would give the president a pass to commit egregious crimes like killing perceived enemies. But on September 1, that’s just what Trump did. In an outrageous breach of both international and U.S. law, he ordered an airstrike on a Venezuelan boat suspected of smuggling drugs, killing its eleven passengers. The administration offered no evidence the boat was violating the law and no plausible legal rationale for its action. Secretary of State Marco Rubio lamely justified the use of military force by characterizing the alleged drug boat, which had reportedly turned around, as an “imminent threat.” Trump announced another similarly lawless attack on September 15.
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