The Supreme Court’s decision last year in Trump v. United States gave the president of the United States criminal immunity for “official acts,” defined as anything that could involve or plausibly extend to the president’s core duties.
Critics of the ruling, such as the constitutional scholar Akhil Reed Amar, were quick to note that the court’s formulation had no basis in the text, structure or history of the Constitution. The dissenting justices in the case, led by Justice Sonia Sotomayor, warned that the ruling would, in effect, make the president a king.
“The court,” Sotomayor wrote, “effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” When the president uses his official powers in any way, she continued, “he now will be insulated from criminal prosecution. Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune.”
She was right. In his second term as president, Donald Trump has claimed royal prerogative over the entire executive branch. His lieutenants, likewise, have rejected judicial oversight of his actions, blasting individual judges for supposedly usurping the authority of the president. And it is clear, as well, that Trump attributes this monarchical power to Chief Justice John Roberts. He even thanked him after speaking to a joint session of Congress this month. “Thank you again. Thank you again. Won’t forget,” Trump said, shaking Roberts’s hand as he exited the chamber.
We can’t say for certain what it is that Trump “won’t forget,” but it certainly seems plausible that this was a clear reference to Roberts’s decision in his favor last year.
The president’s belief in his own absolute power and sovereign authority — “He who saves his Country does not violate any Law,” he said last month in a post on his Truth Social network and on X, misquoting a line from the 1970 film “Waterloo” — has gone so far that he has begun to threaten judges who challenge him, calling it, as my newsroom colleague Peter Baker summarized the point, “a high crime and misdemeanor worthy of impeachment for a federal judge to rule against him.”
This, in turn, prompted the chief justice to issue a rare statement. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” he wrote. “The normal appellate review process exists for that purpose.”
It’s a little hard to know what to make of this. One view is that Roberts is issuing a rebuke that may have consequences for any cases the administration has before the court. Another, less charitable view is that Roberts — who has been very sympathetic to Trump’s past claims of broad executive authority, in keeping with his own expansive (perhaps even radical) vision of executive power — is telling Trump that if he backs down, he will get the results he wants.
Whatever the meaning of Roberts’s response, it is clear that Trump is trying to provoke a confrontation with the federal judiciary, which, at this moment, is the only institution in the American political system that can — and will — exercise direct power against the administration. Trump wants to force Roberts to choose between trying to curb a despotic president (thus forcing a standoff between the president and the Supreme Court), and preserving as much of the court’s influence as possible.
Of course, to choose the latter is akin to surrender. And while some people may have faith in Roberts’s willingness to stand up for American constitutional democracy, I don’t think I do.
I’d like to make one additional observation this weekend. Not long after Trump launched his attack on birthright citizenship, the legal scholar Evan D. Bernick wrote a piece for the Law and Political Economy Project on the faulty logic, bad history and anti-constitutional orientation of the president’s executive order. The 14th Amendment, he said, is clear:
The Citizenship Clause is at once a monument to a world-historically successful democratic struggle against domination and a means of its continuance. It promises birthright citizenship to all who would otherwise be subjected to the arbitrary power of regulatory and enforcement mechanisms over which they have no say.
Bernick made another point I want to expand on. He wrote that the administration’s attack on birthright citizenship is “downstream of a constitutionalism that resembles that of the antebellum period.” This “reactionary constitutionalism,” he continued, “is defined by unchecked power over racialized populations which are deemed unfit to govern themselves.”
I want to add that the Trump administration’s vision of a reactionary constitutionalism (if it is even constitutionalism) is reminiscent of the illiberal constitutionalism of the Confederate States of America.
The Confederacy had a constitution and it wasn’t simply a modification of the federal Constitution with an explicit embrace of “compact theory” and ironclad protections for slavery. “The Constitution of the Confederate States,” the legal scholars Mark A. Graber and Howard Gillman wrote in their volume on American constitutionalism, “was the world’s first example of an illiberal constitution, a constitution unambiguously committed to maintaining and perpetuating illiberal practices.”
I am always writing about “ways to understand” one event or another, but perhaps one way to understand the Trump administration’s constitutional thinking is that it is an attempt to bend the U.S. Constitution into something similar. A charter, not for liberty or equality or a free society, but for the domination of some over others.
What I Wrote
My column this week was on the distinction between an “unconstitutional” act and an “anti-constitutional” act and what that means for understanding the Trump administration.
An anti-constitutional act is one that rejects the basic premises of constitutionalism. It rejects the premise that sovereignty lies with the people, that ours is a government of limited and enumerated powers and that the officers of that government are bound by law.
Now Reading
Erica Chenoweth, Jeremy Pressman, and Soha Hammam on protest and resistance to Trump 2.0, for the Waging Nonviolence website.
In the face of such changes, the public’s most powerful options are often withholding labor power and purchasing power. Calling in sick from work or school, refusing to buy and stay-at-home demonstrations are notoriously difficult to police. Last month, an inestimable number of people participated in such actions to highlight a Day Without Immigrants. The prominence of billionaires in the administration and populist anger toward them make this type of approach even more viable in today’s climate.
Melinda Cooper on Trump’s attempt to build an “antisocial state,” for Dissent magazine:
We are dealing with a very different state form today. The late Keynesian social state, with all its contradictions, has been replaced by the neoliberal antisocial state — a state that has downsized its redistributive functions, converted much of its welfare arm into punitive and carceral functions, privatized or outsourced as many of its services as possible, and multiplied its guarantees to private operators.
Nadia Abu El-Haj on the arrest and detention of Mahmoud Khalil, for The New York Review of Books.
The peril Mahmoud and others face today did not materialize out of thin air two months ago, when President Trump returned to the White House and the Republican Party secured all three branches of the federal government. The range of Democratic politicians and liberal citizens who, over the last year and a half, have vilified Palestinian and pro-Palestinian activists merit their own share of the blame. From the minute protesters converged on college campuses and on the streets of American cities to oppose the slaughter in Gaza, they were portrayed as a danger to the well-being of Jewish Americans and as enemies of the country’s interests.
Mike Konczal on the “abundance doctrine,” for Democracy.
Liberals must offer an alternative, and one path is to put forth a vision built around future-oriented growth. While it isn’t clear either way whether abundance is a good electoral strategy, the priorities it flags have gone missing in recent decades. And if we can’t offer a more prosperous future while also delivering on the things we promise, why should voters trust us?
Jonathan Bernstein on Trump’s attack on the Constitution, for the Good Politics/Bad Politics newsletter.
What’s happening now is a sustained, multiprong attack on the Constitution and the rule of law by Donald Trump and his allies. It didn’t just happen. Nor is there any question about who is responsible for what’s happening overall, even if there are reasonable quibbles over exactly which actions are legitimately contested, which are clear overreach and which are even worse. We need to say plainly: The president is attacking the constitutional order.
Photo of the Week
The Supreme Court. Notice that it is under construction.
Now Eating: Cheesy Green Chile Bean Bake
As you may have noticed, it’s basically my goal to get as many of you to eat more beans as possible. Assuming they work for your diet, a serving of legumes every day provides a good helping of fiber, protein and potassium. They also taste great. What’s not to like?
Anyway, this is another recipe from New York Times Cooking. You can follow as directed and have great results. I think, to make this more of a meal, you should cook some chorizo with the poblanos, and also roast some vegetables to serve on the side. (A salad would go well, too.) If you can, you should make your own salsa verde. And fresh corn tortillas wouldn’t hurt, either. Canned beans are always good, but cooking from dry beans is better, in my humble opinion.
Ingredients
-
1 tablespoon neutral oil (such as grapeseed)
-
2 poblano chiles or green bell peppers, seeds and stem removed, coarsely chopped
-
salt and pepper
-
2 (15-ounce) cans pinto beans, rinsed
-
1 (16-ounce) jar salsa verde, or 1¾ cups homemade salsa verde
-
¼ cup packed cilantro leaves, stems reserved and finely chopped
-
1½ cups/6 ounces grated Monterey Jack cheese
-
lime wedges, for serving
Directions
Arrange a rack in the upper third of the oven and heat the broiler to high.
In a large, ovenproof skillet, heat the oil over medium-high. Add the poblanos or peppers and cook, undisturbed, until browned underneath, 2 to 3 minutes. Season with salt and pepper and cook, stirring occasionally, until crisp-tender, 2 to 3 minutes.
Stir in the beans, salsa verde and cilantro stems, and simmer until thickened slightly, 2 to 3 minutes.
Turn off the heat, sprinkle the cheese evenly over the top, then broil until melted and browned in spots, 2 to 3 minutes. Serve right away topped with cilantro leaves and a squeeze of lime.
The post What Is Justice Roberts Getting At? appeared first on New York Times.
