this post was submitted on 02 Jul 2024
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Yea, it's an interesting one. AFAIU, the delineated powers are basically command of the military and the power to pardon. I really don't see how a Crime can generally be applicable to either of those. It's not like "commanding the army" can just become a crime.
But regulating what the army can legally do ... seems like a very natural thing. I don't know if individuals of the military in the US can be responsible under ordinary law for anything. If so, then I don't see why that would extend to the president should they order something that's obviously a crime. If not, then that's that. And again, there are probably natural exceptions to carve out regarding the very nature of military action that would lead to preposterous inconsistencies if they could possible be made generally criminal ... where again, it seems to me that you don't need immunity ... it's just the nature of the power that is amenable to falling within the meaning of legislative regulation.
Beyond all of that though ... there's the opening line of Article II:
WTF is "the executive power"?! I'm sure there have been attempts in the US to give it some shape ... but I'd also wager it's been left somewhat nebulous too, involving elements quite distinct from whatever powers Congress/Law can confer. Does that count as an enumerated power?
Otherwise ... yea I'm with you. The "official acts" thing seems more than wonky to me ... seems downright expansive. Excluding military action and whatever "fuzzy" powers may be considered intrinsic ... I'd imagine most of the executive's powers come from legislative laws. So the body conferring power can't constrain it to "not doing something criminal"??!!
I've wondered since having a brief look at the decision that the SCOTUS is playing a game here ... where they do not want Trump's trials to affect the election and are hoping to clarify this decision and what "official" means at a later date after the election.
For the military thing, I think there's coverage for that. The constitution gives Congress the authority to govern the conduct of the military, as well as when it may be used. The president's "just" the commander, but they're bound by the same rules for the military that Congress made. I think the best case a rogue president could make there would be that they should be court martialed rather that tried in a civilian court, and I'm unsure if that's better.
Since Congress has authority over the conduct of the military, I can't actually think of a situation where "being commander" was the defining thing, and not their conduct as commander. Closest I got was some sort of negligence resulting in death, but that's derilection of duty and part of conduct.
I believe the executive power thing is essentially "control of the executive branch". I think that one is actually fairly well fleshed out since it's the leading source of disputes, since it's all about what the president can tell a part of the executive branch to do.
It would essentially be "the president is not criminally liable for firing the attorney general".
So yeah, I think the sane conclusion would be that the president is de facto immune to laws that currently don't exist, and likely never will that are insanely narrow in scope.
I unfortunately don't think the court is playing a game.
I think their slow handling of the case was partly avoiding claims of the courts influencing the election, and partly it just being complicated and unprecedented.
I think they were very clear that the other acts are basically anything the president does "as president", particularly since they ruled that it's okay for the president to ask the justice department about options for replacing electors, because the president gets to talk to the justice department.
I think it's also worth reiterating that this doesn't prevent the courts from preventing an action, or other checks against presidential actions, only the consequences the individual may face afterwards.
The president has the same authority to order the military to disband Congress as they did before, I just might be harder to sue them for it.
Cheers!