In fact, very little surprises me anymore. Even the unexpected is usually within some range of possibilities that I expected. I am surprised by the “Kingless Bill” introduced by the Senate Majority Leader today. No, just not surprised. This shocked me. I was actually speechless.
At a high level, the regulation aims to reverse Trump v. United Stateseliminate criminal presidential immunity (but not civil immunity) and strip the Supreme Court of appellate jurisdiction over any prosecution of the former president or even a challenge to the statute itself.
Let’s take a look at the bill. Section 2 explains that the “purpose” of the law is “to clarify that the President or the Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless Congress provides otherwise.” Clarify? This statement is clearly consistent with holding trump card. Section 3 states, “The President, former President, Vice President, or former Vice President shall not be entitled to any immunity from the criminal laws of the United States (whether absolute, constructive, or otherwise) unless Congress otherwise provides.” This statement Completely contradicts the interpretation of Article II by the majority of the Supreme Court.
Oddly, the statute makes no mention of civil immunities at all Nickerson v. Fitzgerald. Clearly, the fictitious immunity that underlies Chief Justice Roberts’s decision is OK. Besides, there’s nothing in it trump card It was even suggested that the Vice President had immunity. This provision may have some unintended consequences for the vice president who serves as President of the Senate, since (under modern law) the President of the Senate is subject to some protections under the Speech or Debate Clause.
Worse, the law states that federal courts “shall not consider whether an alleged violation of any criminal law of the United States by the President or Vice President is within the scope of the President’s or Vice President’s final or exclusive constitutional powers or whether it relates to the President or the Vice President.” Official duties of the President or Vice President, except as directed by Congress. If taken literally, the statute instructs lower courts not to follow binding Supreme Court precedent—they cannot consider the exact matters the Supreme Court says they must consider. It would be nice if Republicans responded like this family planning v. kathy: Federal courts “may not consider” whether a law imposes a significant burden on abortion.
Congress is of course free to make such statements. It is the coordinating department of the government with the power to interpret the Constitution. But unless we are willing to cross the line of judicial supremacy, lower courts will be required to ignore Congress and follow the Supreme Court. Now don’t get me wrong. I hate cooper v aaron. If Trump Derangement Syndrome can destroy judicial supremacy, it might be worth it. I thought Heath Ledger was the Joker escaping the exploding hospital. But Schumer doesn’t have the guts to go that far yet. Instead, he proposed a clumsy way to distance himself from John Roberts.
Section 4 of the Act modifies judicial review of “any criminal proceeding brought by the United States against the President or former President.” Actions may be brought in the applicable district court. But here’s the kicker: the Court of Appeal’s decision on immunity is final!
“The Supreme Court of the United States does not have appellate jurisdiction because the alleged offense falls within the decisive or exclusive constitutional powers of the President or Vice President or the alleged offense relates to an officer of the President’s or Vice President’s duties.”
Conviction of the President of the United States will be halted by lower courts, most likely the D.C. Circuit, which, by the way, will have a Democratic-appointed majority for at least the next two decades or so. If only President Reagan had thought of this idea when appointing a majority of the judges to this court!
What can’t SCOTUS do? The bill lists eight matters that the Supreme Court cannot enforce on its own initiative or direct other courts to enforce:
(A) Dismiss the indictment or any other charging document;
(B) acquittal or dismissal or otherwise terminate a criminal proceeding;
(C) stop, suspend, dismiss, or otherwise impede the functions of any grand jury;
(D) Grant a motion to suppress or suppress evidence or testimony or otherwise exclude information from a criminal proceeding;
(E) Grant a writ of habeas corpus, a writ of kolamnobis, a motion to quash a judgment or judgment, or any other form of post-conviction or incidental relief;
(F) Overturn of conviction;
(G) declare the criminal proceeding unconstitutional; or
(H) Prohibit or limit the enforcement or application of law.
It’s truly breathtaking. If Attorney General Garland locks Donald Trump in Guantanamo Bay and the D.C. Circuit turns a blind eye, the Supreme Court will have no habeas corpus power to free him. I’m old enough to remember the Bush-era debates over stay clauses and jurisdictional divestiture. Democrats clearly support full habeas corpus rights for the 9/11 planners, but not Trump. Priorities. If only Lincoln had such power! John Merriman and William McArdle could not be reached for comment.
So how should the judiciary deal with such a statute? Well, the bill imposes strict restrictions on whether those restrictions can be challenged. Face challenges must be filed “within 180 days from the date of enactment of this law.” When I think about the court’s “facial” analysis Laxmi and Network selection, I cringe. Surely this statute must have some constitutional applicability? So the face challenge will fail, right? What if the President breaks Etsy’s laws?
If President Harris wins and gets the law to go into effect, facial challenges may no way was brought. To test the statute’s constitutionality, a future president would have to wait until after leaving office to be prosecuted. Face challenges will no longer be possible. everyone who criticized Women’s Health v. Jackson The SB 8 can switch directions. I can think of long-term arguments for why a sitting president would be able to challenge this law while in office, despite its limitations—talk about a chilling effect—but I’ll save those for another time.
Challenges to the application “can only be made within 90 days of the date of execution or application.” I don’t even know when this clock will start ticking. If a former president is prosecuted and a district court denies immunity (under this statute), will the defendant file a collateral civil challenge to the statute in federal court? Wouldn’t there be abstentionism at work? Wouldn’t it make the most sense to consider the issue of immunity on direct appeal? Even under Judge Barrett’s concept of immunity, a denial of immunity would trigger an interlocutory appeal. Maybe I’m missing something, but I don’t know how the application challenge plays a role here.
Suppose a former president manages to file some kind of applicable challenge in the correct court in time. The statute even purports to define the appropriate standard of review: “The courts of the United States shall hypothesis A provision of this Act (including this section) or the execution or application of any such provision is constitutional unless it is proved clear and convincing evidence Such provisions or their enforcement or application are unconstitutional. “Presumption of constitutionality, coupled with the “clear and convincing evidence” standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.
Are there other similar statutes that direct courts to apply a specific standard of review? Some bills were “vetoed” Loper Bright Apply directly to the court Chevron respect. This could work under the APA (assuming Justice Thomas’s opinion on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret claims of constitutional immunity? I think the Supreme Court will find the statute unconstitutional, but they don’t have the authority to hear the case!
Oh, and by the way, challenges to the statute itself can only be litigated in the District Court for the District of Columbia and the D.C. Circuit Court. Responsibility rests with Chief Justice Sri Srinivasan:
In a civil action brought under this subsection, the decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and shall not be appealable to the Supreme Court of the United States.
The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act, including this section, to be unconstitutional, or to prohibit or limit the enforcement or application of any provision of this Act, including this section, to be unconstitutional on the ground that it is unconstitutional.
More jurisdictional stripping!
To be sure, this bill is forward-looking. We can imagine what Attorney General Jeff Clark would do with this bill, right? Of course, this bill can’t be about Trump, right? Post hoc clause, right? Incorrect.
If an action is not subject to subsection (a) or (b) when commenced but an amendment, counterclaim, crossclaim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b) (b), and shall thereafter take action pursuant to paragraph (a) or (b), as applicable.
ah? Am I reading this correctly? Any existing offender now in force could be supported by the bill. In other words, if any defense to immunity were raised in Judge Cannon’s court, she would be required to deny the immunity request? Could this be a rule?
There is one rule that I don’t quite understand:
No court shall grant suo motu relief on the ground that a provision of this Act (including this section) or its enforcement or application is unconstitutional.
What’s going on here? I think this hints at an issue where some other federal court may weigh in on the constitutionality of the statute as it considers some related issues.
Perhaps the most brazen part of the bill is Section 6(b)(vi):
All appeals from the United States District Court for the Northern District of Texas, Amarillo Division, shall be brought to the United States Court of Appeals for the District of Columbia Circuit, which court shall have exclusive jurisdiction to hear appeals from civil actions under this article. . This provision is called the “Secret Impeachment Act of Judge Matthew Kachmalik.”
No, Section 6(b)(vi) is not in the bill, but you believe it. You better believe progressives will try to strip the Fifth Circuit of its jurisdiction.
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Let me be clear. The bill has no chance of passing this Congress. If Trump wins, I think the judiciary will be safe for another four years. But if Harris wins and Democrats gain majorities in both chambers, they will find a way to pass the bill. Remember, this isn’t some fringe proposal from the squad, but is being introduced as a priority bill by the majority leader. The whirlwind is coming. Once the Supreme Court is stripped of its jurisdiction over presidential immunity, it is only a matter of time before abortion, the Second Amendment, RFRA, and similar bills are passed. This bottomless pit continues to deepen.
President Biden’s pointless op-ed didn’t even specify whether the statute could impose term limits and was clearly just a warm-up. Senate Democrats are out to destroy the judiciary as we know it. Remind me again, when Trump refers to “Judge Obama,” how disastrous is that? I welcome the comments from those “Never Trumpers” who believe Kamala Harris is the last chance to save our republic.
