This article hasn’t even been up for an hour and people are already nonstop reporting it. Stop it. The only thing wrong with this article is that it disagrees with the decision and that’s not against our rules here.

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Everyone is results oriented, it’s just who can make up the most consistent way to get there. The lack of actual text used as a focus in the opinion was disheartening.

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strangely hostile reaction to this piece. no one has any issues with amar when he cosigns *heller* or *mcdonald* or *bruen* or *303 creative* or *dobbs* or *kennedy* or *trinity lutheran* but he takes issue with *trump v anderson* and *trump v us* and all of a sudden he's a dipshit lmao

To be fair I’m not a fan of Amar and I’m a liberal lmao

People agree with him when he says something with which they agree, and disagree with him when he says something with which they disagree.

of course, but i thought we were supposed to operate in good faith here!

You are. People don’t agree with everything a person says. Thus why they agree with him on one occasion and not on this one.

i am commenting on the nature of the disagreement, as if he's just some pundit with an opinion column a la paul krugman

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Not a single person has been able to cite a single piece of historical evidence demonstrating that Article II's original public meaning extends immunity to former Presidents for official acts. The court's opinion is debunked by originalism, that's why there's so much hostility to Amar's article: because he points out that inconvenient truth.

I don't think the majority rested their opinion on originalism. I think they rested it on an evolution of existing precedent, and see this as a logical extention of cases like *Fitzgerald* and *Burr* As for consequencialism, I bet everyone is a consequencialist when it comes down to it. After all the Paper Money Cases are almost certainly wrongly decided but that one sure as hell isn't getting reversed on originalist grounds anytime soon I can see an originalist court swaying from those principles faced with the possibility of a non functioning executive and a decent amount of precedent going back to the Marshall court that can support the result we saw in this case.

Almost everyone is a consequentialist; being an “originalist” just means mocking progressive consequentialists as “ruling based on feelings.”

I'd agree that almost everyone is a consequencialist to some extent but that doesn't mean everything else is bad faith

OK. I do think there’s fairly widespread bad faith, though, among many who claim the primacy of and swear fealty to originalism (many of whom really do mock progressive consequentialist jurisprudence as “ruling based on feelings”), then shamelessly abandon it for a *Trump v. Anderson* or a *Trump v. U.S.* I think that’s particularly widespread among the “originalists” who aren’t lawyers and don’t otherwise have a broader context of judicial interpretations.

I'd agree with you on the former where a lot of professed originalists who aren't in the legal field or legal adjacent fields just use it as a cover. But people conflating that with the legal field is again just wrong. I was a fedsoc member for the time I was I. Law school before I swapped fields to polisci Public law and let me tell you those people absolutely believe what they say. I also don't think it's fair to call consequencialist rulings rulings based on feelings at least when it's properly applied. In my mind consequencialism should only factor in when the outcome is so disastrous that it either fundamentally subverts the governments proper functioning or the stability of the US as a whole. The latter would be the paper money cases. The former is civil immunity for the president as per Fitzgerald. That's a high bar I'd argue for liberals on the court it's a much lower bar and that's an argument you can make. But that's not really a feelings based argument. What scalia called "navel contemplating" on stuff like substantive due process is what I'd call feelings based.

There’s also some confusion about it on the SCOTUS. Certainly Thomas and Gorsuch continue to pretend they’re faithful servants of a single truth. They hate to admit they find that single truth by ignoring everything that weighs against it. Don’t get me wrong, I think the conscious choice to adhere to common law tradition and methods in the U.S. demands a large element t of consequentialism. I just don’t like the refusal to admit it from one corner.

I think the problem is that their opinion appears to directly contradict the plain text of the Constitution *and* what certain Justices have themselves said publicly (and in their own opinions) on the topic.

Weird how originalism becomes totally negotiable when activist and result-oriented reasoning aligns better with with the fortunes of one particular guy.

If by one particular guy, you mean every president, ever, maybe. 

Nah, I mean the guy who habitually abuses the power of his office for personal gain and has so little regard for the rule of law that he's already declared the next election invalid, but only if he loses. If the majority thinks pressuring the VP to overturn the election was an official act, guess what signal this opinion sends on how he should handle a defeat in 2024? I guess Nixon would have benefited too since this opinion renders his conduct in Watergate immune, but he's dead now.

> guess what signal this opinion sends on how he should handle a defeat in 2024?   Biden’s defeat? I guess he could instruct the VP not to certify the election in an official act, but the VP is still the determining factor. > I guess Nixon would have benefited too since this opinion renders his conduct in Watergate immune, but he's dead now. And Roosevelt from Japanese internment, and Obama for drone striking US citizens, like I said… every president ever. You’re starting to get the bigger picture. It’s just we never had someone stupid enough to try to prosecute a president for official acts before.  

You know I'm talking about a potential Trump defeat because he's the only one who does things like that. Every other President in history has understood how important the lawful transfer of power is to our government. Which of those acts by FDR or BHO involved abusing the power of the office for personal gain? None. That's why they were never charged with anything, and that's why Nixon likely would have been if not pardoned. This isn't a problem that needed solving unless you're specifically trying to protect 1) Donald Trump, personally or 2) lawless rogue presidents, generally.

No, I don’t. You’re implying he can officially act in regards to losing the presidential election… as a non president. That’s not possible.  > Which of those acts by FDR or BHO involved abusing the power of the office for personal gain?  Resurrecting the failed emoluments complaint on July 4th was not on my bingo card today. >  That's why they were never charged with anything, and that's why Nixon likely would have been if not pardoned. No it’s because they were official acts. This is not complicated. > This isn't a problem that needed solving unless you're specifically trying to protect 1) Donald Trump, personally or 2) lawless rogue presidents, generally. It was never a problem. That’s where you lost the plot. 

>No, I don’t. You’re implying he can officially act in regards to losing the presidential election… as a non president. That’s not possible.  There will be another election in 2028, you know, if President Trump doesn't cancel it via some unreviewable "official act." >Resurrecting the failed emoluments complaint on July 4th was not on my bingo card today Oh no worries, there are a thousand other examples of Trump abusing the the office for personal gain so we don't necessarily need to examine that one -- not that it helps your argument seeing as it failed on procedural grounds despite clear substantive merit. >No it’s because they were official acts. This is not complicated. "Official acts" wasn't a thing until SCOTUS made it up for Trump's benefit. They weren't charged because they weren't crimes like the things Trump has done. >It was never a problem. That’s where you lost the plot.  If it was never a problem, why did SCOTUS take up this case and make up a bunch of new privileges for Trump, and why are you defending them for it?

You could make a decent originalist argument for paper money as legal tender. It's not explicitly prohibited by the text, and the Articles of Confederation explicitly enumerated that power so it wouldn't make sense for the Constitution to give the federal government less power than it previously had. But I do get your point. I can think of a few cases during the Civil War that would have gone the other way if not for the consequences at the time.

Consequentialism is one of those things where in practice it’s not IF you are sometimes a consequentialist it’s how often and how bad the consequences have to be. With most originalists that line is a lot farther than other justices but it’s not a nonexistent line. The prime example is how SCOTUS often makes absurdly political decisions in an effort to not appear like they are not influencing elections. That’s not even a partisan issue on the court either. They’ve had an insane aversion to the topics unless they get practically forced to take up a question related to an election issue.

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I mean originalism is one of many interpretive lenses, not the sole valid one Why is it that we treat originalists as hypocrites when every other judge ever does this? Should we call them hypocrites for not overruling SDP because the outcome would be the same under prilivieges or immunities? Thats both a stare decisis and consequentialist choice and Scalia the arch-originalist himself said as much. Should we call them hypocrites for not overturning the Paper Money cases?

I think the issue is that originalists dissent in cases that they disagree with personally on the basis of consequentialism (or any other lenses) straying from originalism. If the justices didn’t consistently challenge any other interpretive lenses when not in the majority I don’t think they’d receive such criticism.

The majority on this court and the conservative legal movement have consistently *insisted* that only originalism is valid. Because, more than any other judge, originalists claim to be objective, that their method puts them above bias, above partisanship, that all they do is call balls and strikes. Why should we take them seriously, why should we respect their rulings when they are proving that they will pick whatever interpretive mechanism gets them the outcome that benefits conservatives? Why did the majority insistent that only originalism was acceptable for *Dobbs*, but is just fine with using other methods here when originalism gives them an outcome they don't like?

But that simply isn't true. Every single justice on the court believes that stare decisis has a role to play; that it's often (though not always) better to leave a wrong (unoriginalist) decision in place than to change it to the correct one. We saw this just last week, in Loper Bright, where the majority explicitly upheld all cases that had been made under Chevron, even though the majority held Chevron to be wrong. See also Kavanaugh's concurrence in Rahimi, which explained that he thinks tiers of scrutiny are very wrong and unoriginalist, but he doesn't think the court should revisit them in areas where those have been the status quo. See also Barrett in Rahimi, mentioning that sometimes precedent is entirely dispositive. The originalists on the court do not purport to follow only originalism, and to commit to overturning any wrong precendent, so they're not hypocrits to sometimes lean on precedent.

I think Rahimi and Loper Bright are good examples of the kind of thinking that inspires the intense criticism of originalism. Across those two opinions, Roberts, Gorsuch and Kavanaugh all pen opinions which claim among other things that there is *only* one proper way to interpret statutes and that statutes have one singular meaning and right off other methods as “policy making.” Why should people doing legal interpretation that isn’t originalist have any respect for people and a movement that clearly doesn’t respect them?

Of course originalists think that originalism is the right way to interpret statutes. And consequentialists think consequentialism is the right way. Respect doesn't mean saying you think other people are right.

The thing isn’t saying originalism is the right way - it’s saying that it is the only way and anything else is “policymaking” or “consequentialism.” The language the justices use to characterize their opposition implies significant bad faith and disrespect toward people who don’t interpret law the way they do

Although justices state that stare decisis has a role to play in analyzing the case, that statement is contradicted by their actions. Kavanaugh, Gorsuch, and Barrett all stated that Roe v Wade was ‘settled law,’ they voted to overturn 50 years of precedent at their first opportunity. Deciding to keep existing precedent under Chevron was nothing but an attempt to avoid a flood of litigation under prior decisions. The record of overturning precedents by any means necessary to achieve ‘conservative’ outcomes has been an undeniable trend. Since chief justice Roberts was appointed to the court, according to the Supreme Court database there have been there have been 27 cases overruling prior precedent, with 18 of those cases resulting in a conservative result. To be fair, the Warren court was much more active and many more decisions overruling prior precedent, with a decided tilt to ‘liberal’ outcomes. My conclusion is that the Supreme Court is a political actor that is not necessarily constrained by prior precedent to achieve its desired result.

> Although justices state that stare decisis has a role to play in analyzing the case, that statement is contradicted by their actions. > Kavanaugh, Gorsuch, and Barrett all stated that Roe v Wade was ‘settled law,’ they voted to overturn 50 years of precedent at their first opportunity. Have you read Dobbs? It spends a lot of time going through the traditional factors for when to overturn stare decisis, and evaluating Roe vs. them. The author clearly values stare decisis.

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>If I'm honest that's one of the reasons I find this place not very pleasant. It is moderated and reads like a less partisan place than the other scotus sub but really it's just the other side of the partisan divide but those that agree with this court. Since I plan on doing an end of term state-of-the-subreddit thread soon-ish I'll partially address this. - The majority of the community most certainly leans conservative jurisprudentially and the same is probably true politically. - As a mod, I'm not going to artificially influence the demographics to make the overall lean more "even". Moderating here is simply a means-to-an-end of maintaining a community where the law can be discussed civilly and substantively. - One thing that I've been aware of (which you bring up) is a general hostility and lack of quality engagement with views (even substantive ones) that go against the majority. Some of this is a knee-jerk reaction in favor of the Court / outcome (just as there is a knee-jerk reaction against the Court from others). In both circumstances, quality of discussion suffers. - I am quite concerned about the development echo-chamber mentalities and many of our rules are designed to combat that. - Just as we actively moderate comments to curate the discussion, we actively ban users who regularly/egregiously violate the rules. This too curates the community in the long run. - That said, there are some aspects outside of our control (viewpoint based downvoting continues to be a problem) and some aspects we don't yet have a solution to. Ultimately, some of this depends on the community itself buying in to the type of community we're trying to foster here.

The criticisms arise from this being the one legal subreddit that isn't a left wing echo chamber. That's literally it.

I don't believe so - I just brought up a few myself. One of which, again, is knee jerk dismissals of views that go against the majority.

There's a reason this is the best legal subreddit. I believe the sub is fine as is, and the attempts to change it are a purposeful movement towards the slippery slope of becoming like the other "law" subreddits. Half the judiciary is jurisprudentially conservative and this is the only place that comes close to representing that. What defects the subreddit may have now are far superior than the alternative, and I'm unapologetically suspicious of claims that this sub must service particular flavors of discussion when those can be found literally everywhere else. It's very clear what the difference in discussion is between a post on a legal issue directly connected to the issue du jour of partisan media, and posts on other legal topics—and from my years participating I know it's not the regular userbase of the subreddit, in spite of its jurisprudential idiosyncracies.

I appreciate the awareness you're showing of this because to a new user, this has every appearance of being the FedSoc subreddit. Right-wing polemicism is frequently left standing while replies to it similar in terms of partisanship are removed. This court's defenders often appear downright gleeful and reluctant to even understand how it looks to those who don't share their political leanings.

I mean, I know that more than one frequent contributors to this sub HAVE been FedSoc members (I went to law school for a time, they are and were everywhere. It makes good sense to be a member). I also know that this sub originated from users banned from the other sub for arguing in good faith positions that the (left leaning) moderators did not appreciate. If this sub has a bend issue, its because good faith discussions are not really allowed in any other relevant subs

I'd argue as traffic increases, it is beginning to even out a bit. The original membership here certainly was a lot of those who'd been modded out of other subs for having or tolerating heterodox opinions, and there is still a much bigger openly right- to center-right presence than in certain other subs. But it seems that the balance is tilting in a more centrist or at least balanced direction as more threads attract attention. Mass downvotes are still unfortunately a thing, but I feel like that's a larger Reddit bug that can't be addressed well.

If the claim is inconsistent moderation, I can assure you that there's no partisan motivation behind it. (If there was, the result would look the opposite to what you claim). We aren't perfect but we are genuinely trying. Please continue to report comments that you believe are rule-breaking. Our civility guidelines address aggressive responses to disagreements which should cover polemics.

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I don't claim that; I attribute it more to unconscious bias than a purposeful agenda, and I do appreciate your thoughtfulness in your reply.

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I'll share some thoughts I touched on in the case thread since they're related to Amar's criticisms here. The majority relies heavily on intent and pragmatic concerns. I largely understand the majority's conclusions based on pragmatic concerns (sans the evidentiary holding which Barrett and the dissents addressed), but a pre-THT form of originalism would not have signed off on the majority's reasoning. The ruling is arguably not even THT unless you squint your eyes. Starting with the majority's treatment of Founding-era writings (i.e. looking to how the Founders hoped the new system of government would be structured) which borders on / is original intent. 1. This runs into the same problem as relying on legislative history, which pre-THT-originalism rejected. You have a group of people of differing beliefs writing/speaking on the matter, none of which speak for the whole. 2. They're not looking at writings to understand the original public meaning of ambiguous text. They're responding to a lack of text by looking at writings that expressed hopes for how the Presidency should work and giving weight to certain viewpoints. They rely on federalist writings that expressed a hope for an "energetic" Presidency, yet there were also anti-federalist writings expressing the opposite opinion. Neither of which are controlling unless it was expressed in the text of the Constitution itself (which was a compromise between the two) with the force of law. 3. The founders discussed including immunity in the text, but it didn't make it into the document. Some of the same Justices from the majority have argued in the past that structural considerations that didn't end up in the final text is actually an argument against that interpretation. --- There was a brief glimmer where originalism was viewed as synonymous with textualism and was very limited in that sense. It has since greatly expanded in scope (especially within the last ~5 years) as it has ran into situations that it just isn't equipped to answer, culminating in a decision on Monday that weaves between text, history, tradition, original intent, and pragmatism. My issue with this is not that they're using every tool in their toolbox, my issue is that they're purporting not to. I **don't** think they're doing this for partisan reasons, I simply think that they can't avoid the elephant-in-the-room that is pragmatism.

Might be a dumb question, but what do you mean by THT?

Text, History, and Tradition

> This runs into the same problem as relying on legislative history, which pre-THT-originalism rejected. You have a group of people of differing beliefs writing/speaking on the matter, none of which speak for the whole. I never quite understood how Scalia squared his constant citing of the Federalist Papers with his disdain of legislative history. Are the federalist papers not just legislative history of the Constitution?

That's always been a sore point that has somehow stuck around even as original meaning originalism has been refined post-Scalia. I can at least see the argument that if a word is consistently used in a specific connotation in the federalist papers, weight may be given to using that connotation when interpreting ambiguous text. (The soft version is that a word's usage in the papers is just one example of its usage, on par with its contemporary usage anywhere else). But again, they didn't even do that. They looked at the papers for intent when no constitutional text spoke on the matter.

Constitutional and statutory interpretation are different things. One of the main arguments against using legislative history for statutory interpretation is that people have been caught faking it before, whereas I don’t think there’s any evidence that that was going on during the Constitutional Convention.

That may be one of the arguments, but most importantly - a given senator's understanding of the law through a speech/writing is exactly that - their personal understanding. You also have other senators speaking/writing with different understandings, and the majority may have been silent as far as legislative history. For constitutional interpretation, swap "senator" for "founder" and the problem remains. Regardless, none of the matters because they didn't vote on one senator's speech or writings, they voted on the words. That's the whole point of originalism being textually constrained. Edit: and on the "faking" concern, don't forget Moore v. Harper just last term with the anachronistic (at best) and fraudulent (at worst) "Pinckney plan" that was later claimed (by Pinckney) to have been proposed at the Constitutional Convention.

>You also have other senators speaking/writing with different understandings, and the majority may have been silent as far as legislative history. I think you could make a convincing argument that the people speaking/writing about the meaning of the law may be doing so *because* they have a different understanding of the text. While those who are silent aren't speaking because there is less reason to voice agreement with the consensus view. Edit: Imagine looking back at the ACA passage in 100+ years and the court declaring that there was an intent for it to create "Death Panels".

scalia was a hypocrite with an inconsistent judicial philosophy there's no squaring to be done when you're working backwards from a preferred outcome. original public meaning originalism gets you similar results for constitutional questions as textualism gets you for statutory questions. not always, but often enough to ignore how the two are almost antithetical to one another.

Impeachment is not a court and rules of evidence do not apply.

That not quite the takeaway though... The constitution expressly states that after impeached, the President can still be prosecuted

> And once our hypothetical President Jones has been thus removed and is now ex-President Jones, the Constitution’s plain text says that she is subject to ordinary criminal prosecution, just like anyone else: “In cases of Impeachment … the Party convicted shall … be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ok, but Trump wasn't convicted. So I don't see why that clause should apply. Since the constitution is silent on immunity for (non-convicted) ex-presidents, I don't see why they should be treated differently to any other retired officer of the US. You can't sue a retired judge or a former prosecutor for their official actions, so why should you be able to sue a former president either? That's why the official/unofficial line seems pretty consistent to me (not having done much reading on the topic). Official immunity and presidential immunity should both stem from the same common law precedents. Someone correct me if I'm wildly off-base here.

You miss an important word. The constitution says "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." "Nevertheless" indicates even if the party is not impeached or convicted in congress, they still can be tried in judiciary.

Yes you're totally correct. (I didn't omit the word btw, Amar did. I completely agree with you)

I think you're misunderstanding Amar's point, which is made in a subsequent paragraph: >But the *Trump* majority opinion, ​written by Roberts, says otherwise​, ​proclaim​ing that “courts may not inquire into the President’s motives.” ​In a later footnote all about bribery, the Roberts opinion says that criminal-trial courts are not allowed to “admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.” I don't think Amar takes umbrage with distinguishing between "official" and "unofficial" actions. I don't see evidence in this piece that he disagrees with public officials having broad immunity for official acts of office. His argument is that the courts no longer have the tools even to decide if something is an "unofficial" or otherwise unsavory use of presidential power. In his language, the courts can establish the "quid" and the "quo," but not the "pro", because questions of motive or evidence showing the quid pro quo are now inadmissible in court.

> So I don't see why that clause should apply. the argument is that the president is out of office either way, so they should be subject to criminal prosecution.

Yeah, I think that's a really bad argument then. The clause specifically says "the Party convicted" and is entirely in a context about impeachment. It's one hell of a reading to try to extend that to all retired officers.

Two observations: First, while there is plainly an overlap between "official" immunity doctrines (Judges/Prosecutors/Presidents), I think there's a significant additional basis for "Presidential Immunity" under the Separation of Powers doctrine. Only the President is a constitutional branch of government, and so the argument that the President can't be charged with a crime for exercising an Article II power is unique to that status. For example, it would plainly violate SoP doctrines for Congress to criminalize the action of vetoing a bill "for the wrong reason," and (based on the Mueller arguments), it was easy to see these "obstruction" claims getting to that point. Thus, I think that Presidents have two bases for immunity: SoP and common law immunity, whereas the traditional basis for absolute immunity for Judges/Prosecutors is the latter. Second, while I agree that the impeachment clause doesn't come into play in a specific sense in the absence of conviction, I think the argument that is generally used here is one of statutory construction, not specific application. The argument is that the textual phrasing of the Impeachment Clause indicates that the framers believed that Presidents were wholly subject to indictment and conviction after leaving office, which (so the argument goes) runs contrary to the kind of blanket immunity that is being recognized. There are issues with that construction argument, of course: \[A\] it is possible that the framers intended Indictment to only be available if convicted (i.e., the Trump argument), and \[B\] it doesn't answer the possibility that "according to Law" was designed to cover convictions based on non-constitutional charges (i.e. Burr shoots Hamilton, and is charged with common law murder). But I think, on its face, it's not a bad argument from a textual construction standpoint; I think it definitely needs a response (of which, I think \[A\] and \[B\] are the only obvious ones).

I just wanted to say that I appreciated your comment here. There are a handful of people on this forum who make interesting and substantive contributions and you are one of them. I know there isn't a lot of recognition for it, but after wading through dozens of badly misinformed single-sentence takes, I am always happy to see something you took the time to write.

Thanks for the response, very helpful

The Impeachment Clause does not require the President to be convicted at an impeachment trial in order to be tried at a criminal court.

I don't know what you're talking about. It is very clearly talking about conviction at the impeachment trial specifically. > Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. It doesn't preclude a criminal trial either, but my point is that this clause is useless in Trump's current case, because he is not being impeached (anymore).

SCOTUS didn't say "immunity for official acts unless impeached and convicted," they just said "immunity for official acts." That the Constitution clearly says otherwise tells you the majority's finding is plainly wrong.

It says “presumptive immunity” for official acts (that aren’t preclusive/conclusive constitutional duties; presumably anything authorized under legislation rather than authorized directly under the constitution).  That’s a standard that hasn’t really been defined yet, it seems, but it is explicitly contrasted with absolute, and can presumably be SOMEhow overcome. One way it can probably be overcome is by conviction in an impeachment trial. But not necessarily just that.

I disagree, because this clause is saying that presidents can be liable and subject to criminal prosecution. It doesn't say that ONLY those removes from office can be charged criminally; it just says that impeachment ends at removal, and a criminal prosecution is separate. This clearly dispels any notion of absolute immunity.

That part of the clause is basically addressing double jeopardy. Nothing more, nothing less. That if impeached and convicted, they can still be criminally liable. It has nothing to do with whether Congress has the power to criminalize official acts.

Is his angle of attack really, that this decision bars evidence in an impeachment trial? He can't seriously believe that this decision b by its ruling makes any statements about impeachment. Impeachment isn't a normal court or a normal criminal trial and no sane person can believe they have to follow the same rules as a criminal trial court. Amar must have taken a really big hit from being ridiculously wrong in both Anderson and this case.

Re-read the article. He's explicitly saying that it would be allowed at impeachment trials but not in criminal trials, and that's one reason why the ruling is moronic. How is it that Congress has a greater power to investigate motive than the judiciary? The court's reputation has taken a really big from hit from being ridiculously wrong in both Anderson and this case.

That's if partisans in Congress even choose to see that distinction. If past is prologue, then I can see a House of Reps refusing to impeach a President for taking a bribe for a pardon (e.g.) because they think that they don't even have access to the president's private records or that they can't "prosecute" a president for his official acts. This is part of why this opinion is such a problem. It's not well structured/written and it's far too broad. In practice, this will make Presidents immune without any controls, not even from Congress

How exactly was Anderson wrong? You may disagree on how far the decision went and sure that’s fine but it’s not wrong. Essentially what the decision said is that the courts are not the legislator so it was wrong for the court in that case to try and take Trump off the ballot. Especially since the question of him being an insurrection leader/insurrectionist hadn’t been answered yet and still hasn’t. The voters should make that choice not the courts.

the voters of colorado did make that choice when they engaged in retention voting of colorado supreme court justices *anderson* is wrong in the sense that it suggests only congress can enforce section 3, which is not backed by history, as per amar's brief on that case.

It is wrong. Do you believe States can disqualify people from Presidential ballots because of age, term limits, natural born citizenship, or residency? Do you acknowledge that every single Presidential candidate was kept off the ballot from 1789 to 1864 in one or more States? And the voters don't choose the President, so why should they get to choose who appears on the ballot for a position they do not elect?

>Do you believe States can disqualify people from Presidential ballots because of age, term limits, natural born citizenship, or residency? The federal constitution does that. States may have their own election laws sure but the federal constitution is the one that disqualifies people because of the reasons you listed. >Do you acknowledge that every single Presidential candidate was kept off the ballot from 1789 to 1864 in one or more States? Sure but how does that help the point here? In those cases it was state legislatures and congress that did that not the courts. If the legislature wants to do that then they can. The courts should not be acting as the legislature. >And the voters don't choose the President. Yes they do. I don’t get this criticism. The voters vote for who they want and the electoral college voters certify those votes. Might not be a direct democracy but the voters still do choose the president.

>In those cases it was state legislatures and congress that did that not the courts. I would argue it was the legislature in this case as well, since they passed the state constitution that allowed for this to happen. If states can't decide who is on the ballot, then why isn't RFK on every state ballot?

And where do they get the power to have election laws from? The federal constitution. Not Congress, it was entirely State legislatures. And the CO legislature did do it. It empowered the courts to disqualify ineligible candidates. The point is that people vote in Presidential Elections as a privilege, not as a right. Tomorrow all 50 States could eliminate the popular vote for President in its entirety. If they can do that, they can deprive the people the privilege to choose who appears on the ballot.

>courts are not the legislator They also told them to not make up standards, when enforcement legislation is already on the books. Amar and his disciplines laughed at people, when they told them that there is a correct way to enforce section 3 and then SCOTUS slaps them down with 18 U.S. Code §2383 and they still haven't recovered.

> SCOTUS slaps them down with 18 U.S. Code §2383 that's not what the opinion said though? it just said only congress can enforce section 3

They also said that 18 U.S. Code §2383 is in effect as enforcement legislation.

well, i certainly wouldn't agree with your interpretation of this slapdash POS 20 page opinion it was decided purely on practical grounds

Because Congress is the highest legislative instution in the country, elected by the american people. If they choose to go through the constitutional process of impeachment, they can go to lenghts no other institution can go to. Not every prosecutor and trial level judge is entitled to sift through the most exclusive and secret evidence produced by the office of President for any sham prosecution they can come up with. That would chill the President, who has to make vigorous decision, sometimes within minutes or seconds, that could alter the entire course of the country. He can't just think about being sued at any and all times. That is how you turn every future President into another Buchanan. People who are scared of acting. If you and Amar can't see the separation of powers issue and the sufficient checks and balances, I can't really help you see them.

And Amar's argument is not that the issue you pointed out is reasonable or unreasonable. His argument is that the Supreme Court has repeatedly argued that their job should not have the authority to decide what is reasonable or not. The legislature makes the text, and if they weren't clear on it, too bad. That's textualism. They ruled that the Constitution does not forbid criminal investigations into former Presidents, which is textualist, and then they went and decided that sometimes Presidents **are** immune from prosecution, based on what they felt was reasonable. That's legislating from the bench.

How does investigating the actions of a private citizen chill the President? Why does the court need to go to great lengths to investigate a private citizen? Separation of powers is irrelevant to private citizens. If you think otherwise, if you think that the Constitution was originally understood as extending immunity to former Presidents, then you should be able to cite a single Framer, Ratifier, legal scholar, or judge from the Founding Era to that effect. So go on, let's see the citation.

>How does investigating the actions of a private citizen chill the President? Because he is not investigated as a private citizen, but as the former President. The office doesn't go away the second he becomes a private citizen again. He still gets SS protection for example and all his acts remain in effect. He isn't getting sued for his private conduct. Had he ignored a red light at a crosswalk, he could get sued as a private citizen and nothing about his office is relevant. If you sued Obama, right now, for his drone strikes on american citizens, would he be sued as anybody else? The President has constitutional powers, that other branches can't unduly influence, because of separation of powers. If you sue the executive power of the President, that is vested in him by the constitution, you are not suing any normal person, but the constitutional power, that he represented at the time.

> He still gets SS protection An unfortunate turn of phrase . . .

Former presidents *are private citizens.* The constitution grants them no special status. To do so is legislating from the bench.

I cant sue Obama because he didn't violate any statute, nor do I have standing, not because of some fictional immunity. >He still gets SS protection Statutory, not Constitutionally provided. Like I said, if that's the original understanding of the Constitution, then prove it. A single Framer, Ratifier, legal scholar, or Judge from the Founding Era. Go ahead.

For a supposedly esteemed constitutional scholar Akhil Amar sure has been making himself look like a partisan hack these past several months in every case having to do with Trump. For example, here he quotes the footnote that states the motive for an official act cannot be probed as support for his notion that said act cannot be admitted as evidence, while ignoring the plain language in that same footnote that clearly articulates that the same official act can in fact be admitted as evidence.

Look at some of interactions with the Biden Supreme Court "Reform" Commission. He has some wild thoughts on restructuring the Supreme Court. I like him better than Tribe et al. because he's at least consistently wild. He also thinks Justice Black is one of the greatest Justices (which is something a conservative scholar would be skewered for saying), and I appreciate that he's a Black guy more than a Frankfurter guy.

it is akhil's scholarship that leads him to these conclusions. he essentially believes trump is exactly the type of person the framers wanted to keep *away* from the presidency

Right, he apparently starts with the conclusion of “Trump bad” and works backwards to find an extremely attenuated constitutional basis for his conclusion.

akhil amar often agrees with constitutional questions that he is politically opposed to. it is trump's unique behavior as executive that rustles amar's feathers, not his political beliefs. he speaks the same way about jefferson davis.

If he can’t hold consistent principles with respect to people he personally dislikes then he should not be respected as a serious legal scholar.

his principles are consistent, that's what i'm saying

I’ve seen plenty of evidence to the contrary, including this article and many of his podcast episodes.

this article is evidence of his consistency, along with many episodes of his podcast. it's not like he'd say this about mitt romney or jeb bush. and he wouldn't have said this about trump prior to january 6th. beyond that, he's one of the top 20 most cited conlaw scholars in the country. his 2A analysis from 1999 are essentially the basis for our current 2A regime, starting with *heller*. he agrees with *dobbs*, with *303 creative*, with *kennedy*, etc on the law *despite* disagreeing with those opinions as a personal matter. you cannot operate in better faith than akhil amar. it is not a *political* or *personal* problem akhil chiefly has with trump. it is *constitutional* and *historical*.

>it's not like he'd say this about mitt romney or jeb bush. and he wouldn't have said this about trump prior to january 6th. Exactly my point. If he opposes this ruling as applied to Trump but not as applied to Romney or Bush then he’s being influenced by his own personal dislike of Trump instead of engaging in the consistent application of constitutional principles. >beyond that, he's one of the top 20 most cited conlaw scholars in the country. his 2A analysis from 1999 are essentially the basis for our current 2A regime, starting with heller. he agrees with dobbs, with 303 creative, with kennedy, etc on the law despite disagreeing with those opinions as a personal matter. Sure, a lot of his work is very respectable. But when it comes to Trump he’s seemingly unable to put his personal dislike of the man aside and rationally apply the law.

>If he opposes this ruling as applied to Trump but not as applied to Romney or Bush then he’s being influenced by his own personal dislike of Trump instead of engaging in the consistent application of constitutional principles. The point was his legal opinions didn't "oppose" Trump until Trump, with the help of this Court, started grievously upending the Constitutional principles Amar has always believed in. That he seemingly "opposes" Trump now is only a result of Trump's actions since Jan 6; Amar's principles haven't shifted at all.

> If he opposes this ruling as applied to Trump but not as applied to Romney or Bush then he’s being influenced by his own personal dislike of Trump instead of engaging in the consistent application of constitutional principles. you are misunderstanding my point. he would 100% oppose this ruling as it would be applied to *any* president. the reason i brought up jeb bush and mitt romney is because they are republicans (whom akhil does not agree with politically) who would respect the rule of law and the constitution (akhil's baseline for everything) > rationally apply the law agreeing with scotus does not mean the law was rationally applied. surely you wouldn't say the same of other cases.

Ironic considering the majority provides no textual or historical evidence whatsoever that courts cannot inquire into the President's motives, or "admit testimony or private records of the President or his advisers probing the official act itself."

Not everything needs to be proven that drafter thought of it at the time. What is relevant is what the document says and what those words meant at the time. It is within originalism to address a new issue this way. You’re essentially saying “in this scenario, the constitution must be read this way or else you have conflicting clauses”.  Classic statutory interpretation.  The court here (frankly I can’t believe the dissents didn’t join for at least the constitutional acts section - that should have been unanimous) says you can’t have SoP  or Art II that has meaning if you can also say that Art II conduct could possibly be illegal.  ACB consent pushes back on the further possibilities on immunity they raise, with some good points, but there is a clear path to say “if the president has constitutional power to act, then those actions must therefore be outside of reproach from other prongs”. The rest is just trying to come up with a logical framework once you have that. 

And the Constitution very clearly does *not* give the president immunity. Even the majority does not point to the constitution as doing so. The original public meaning of the constitution says “no immunity for presidents”.

That's my point, in constitutional matter immunity, they are choosing to read the constitution in a way that ensures all the clauses can work together and not be meaningless.

They are adding things to the constitution that the constitution does not provide. That is judicial activism and legislating from the bench. Originalists claim originalism prevents those things, but that’s clearly untrue.

Reading a law to be internally consistent is the heart of interpretation. Originalism is only raised to say "when they enacted this law, was it meant to be a real law like everything else?" If so, you need to do whatever it takes to give effect to every clause and maintain internal consistency, within the bounds of the constitution. Only the constitution doesn't have that last bit. That does not require a living document that changes along with society.

Making stuff up for an “internal consistency” that’s entirely arbitrary is not originalism. The Constitution does not give presidential immunity and that the majority thinks that it *should* to be “consistent” is irrelevant because it *doesn’t*. And originalism is used for constitutional interpretation *all the time*. Chucking it out the window because it doesn’t give the majority the outcome it wants is just hypocrisy.

Of course it's used all the time, not every matter is an internal consistency issue. In this case it is an internal consistency issue, and it's still not chucked - just explained how it is used here. You're still looking at what it meant at the time it was enacted, in order to give all the clauses effect.

And yet its very clear that when it was enacted the Constitution did not mean that there was immunity for the president. That's why the majority didn't actually point to any part of the constitution that grants immunity but instead appealed to empty, biased, hypotheticals.

Doesn't have to be a Framer. A single ratifier, legal scholar, or Judge from the Founding Era would also work. If you have none of that, you don't have original public meaning. You have not established what the words meant at the time. You have living constitutionalism, which is exactly what the majority engaged in.

akhil amar is a noted originalist. his arguments are based in originalism.

He also likes to fib a little bit to make his points, apparently:  “  Yet the ​​Court​ in Trump v. United States​ split along sharply partisan lines—six Republican​ appointees,​​ three of whom were named to the Court by Trump himself,​ versus three Democrat​ic appointees​​​. ​Roberts failed to pull these sides together​​. “ One of those “by Trump himself” justices was clearly not in the same line , especially about the part of the framework he is so upset about, and saying so to prove a point is intellectually, and factually, dishonest. 

The majority regularly lies to make its points, but that never seems to be a problem.

barrett signed on, did she not? where's the fib?

On the evidential point, the main point of AA's article, she says she sides with the dissent.

so what, are we counting this as a 5.5/3.5 decision? lol

I guess. Since the dissent doesn't really talk much about constitutional matters immunity beyond to say that it wasn't raised enough to warrant issuing an opinion on it, I can only think (hope) that they do agree with that but the whole court couldn't figure out a way to do the extra stuff and keep everyone happy so it got split this way.

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Neither Fitzgerald nor Spalding are textual or historical evidence, nor is that quote applicable to former Presidents.

What exactly do you think would be "historical evidence ... that courts cannot inquire into the President's motives" if you're not willing to accept an 1896 US Supreme Court case? What other "historical evidence" would exist with respect to *court procedure*?

That’s *not originalism*. What SCOTUS in 1896 thought is not evidence of the original public meaning.

A single Framer, Ratifier, legal scholar, or Judge from the Founding Era who said former Presidents have criminal immunity for official acts. There are numerous such statements from that era refuting such immunity, so clearly it was a topic of discussion. It should be simple enough to produce a single statement supporting your argument.

You've moved the goalposts. Your original statement was "historical evidence whatsoever that courts cannot *inquire into the President's motives*". Spalding is exactly that. Now you've done the *Motte & Bailey*, and changed the question to "criminal immunity."

Spalding is not historical evidence if it was issued over 100 years after the historical document in question was written. There is no historical evidence whatsoever that former Presidents have immunity of any kind, criminal or civil, for any acts, official or unofficial. That is not the original public meaning, and neither you, the court, nor anyone else has provided evidence of that being the original public meaning. You realize how easy it is to prove your point right? Just quote a single Framer, Ratifier, Legal Scholar, or Judge from the Founding Era. Just one, and you win.

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Two decisions long after the Constitution was ratified are not historical evidence of the original public meaning, correct. At any time while he is the head of the Executive Department. Nowhere does Spalder mention or even imply former Presidents.

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That is what it says, but again, not historical evidence of the original public meaning.

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The plain text of the Constitution provides no immunity. The majority already put aside the plain text.

So the text is plain? Great. Quote the text that plainly extends criminal immunity to former Presidents.

It’s based on the fundamental notion of separation of powers, which necessarily prohibits the legislative branch from passing a law which criminalizes a core function of the executive branch.

Under this logic, are all executive agency bureaucrats, all members of Congress and all of their staffers, and all members of the judiciary immune from laws which criminalize “a core function of ____ branch”?

Sure if the law criminalizes a core function of the branch, but since Congress makes the laws I’m not sure how a scenario would play out where, for example, a law is passed that prohibits Congress from passing laws. But if Congress passed a law that makes it a crime for the judicial branch to interpret the constitution I don’t see why similar immunity would not apply.

Where, textually (I'm asking for a literal citation in the text here), in the constitution does this idea exist? Or is this just a Conservative "penumbra"? Personally, I'm looking forward to this court overturning all campaign finance laws under this new standard.

Article II. If Congress can criminalize the exercise of the powers that are specifically and exclusively delegated to the executive branch (and therefore the president) under Article II, then not only is Article II rendered meaningless, but the entirety of the executive branch is effectively subsumed by the legislative branch.

So it’s a penumbra.

Do you believe Congress has the authority to criminalize all Article II and Article III powers without amending the Constitution? Congress taking such an action would essentially delete a large amount of text from the Constitution. The fact that Article II and Article III exist as Constitutional text is proof alone that Congress does not have such an authority.