Michael Tomasky came up with an interesting thought. Writing in The New Republic, he speculated on what Joe Biden could accomplish if the Supreme Court rules that Presidents have absolute immunity for anything they do in their official capacity. Time for Dark Brandon!
During last week’s oral arguments in United States v. Trump, it sure sounded like there might be five Supreme Court justices willing to conclude that a president should indeed have lifetime immunity from legal reprisal for official acts committed as president. This prospect is terrifying because it would hand a President Trump a nearly blank check to do anything he wants—to the Constitution, to his political opponents, to the executive branch—and there will be no way to stop him unless 67 votes emerge in the Senate to convict him of high crimes and misdemeanors and remove him from office, which seems a near impossibility, given Republicans’ excessive fealty to and fear of the man and his movement.
But then it occurred to me over the weekend: Well, wait a second. Donald Trump isn’t president. Joe Biden is. And if presidential immunity for official acts were to apply to a future President Trump, would it not also apply to current President Biden?
Of course it would. And I hope that fact has them doing some thinking in the Biden White House. Democrats should drive the point home to Republicans and the nation that two can play this game.
What “official acts” might Biden undertake once Samuel Alito, Clarence Thomas, Neil Gorsuch, Bret Kavanaugh, and possibly John Roberts declare him to be above the law? Well, let’s have some fun here.
Let’s start with the Supreme Court itself. Biden could wake up one day and announce that the court should have 13 members, or 15, and he could set about appointing the new associate justices and doing his best to ram them through the Senate, offering Joe Manchin trillions in economic development for West Virginia to secure the retiring senator’s support, between now and Election Day.
Politically risky? Sure. But maybe not as politically risky as most pundits would assume—and not nearly as costly to the republic as the things Trump is contemplating doing. Remember, the Constitution calls for no set number of justices. Biden would be within even his pre-immunity rights to try to change it. Two polls came out last fall asking respondents whether they’d favor court expansion, and the affirmative view prevailed in both: It was 54-46 in one, and 44-35 (with 22 percent having no opinion) in the other. That looks like a winnable political fight to me.
Biden would need only to make two arguments. Number one, this court delegitimized itself when it took away a half-century-old right, the right to a safe and legal abortion, in the Dobbs ruling. Every one of the justices who voted to strip that right away from women vowed in his or her confirmation hearing about their deep respect for precedent. They all lied. Number two, this very court gave me the power to do this! I’m only doing what this very Supreme Court just ruled a president was within his rights to do.
Okay. We all know Biden is not going to do that. He’s too respectful of tradition, and Democrats are too fearful of the right-wing noise machine, which would kick into an unprecedented outrage gear if Biden actually tried to make use of the tools the Supreme Court just handed him.
But here’s my point. If this court were to give presidents a grant of immunity for official acts, Biden should most certainly use the occasion to play some hardball. Make some threats about what he might do with this power. Get the American public thinking about some things they just don’t think about enough, leading public opinion in the direction of reforming aspects of our democratic system that badly need reform.
Take the Electoral College. Democrats have won seven of the last eight presidential elections, in popular vote terms, but this archaic and reactionary system that was put into place to give presidential candidates from slaveholding states an advantage has helped elect two Republicans who lost the popular vote.
I don’t think Biden should just unilaterally end the Electoral College—although, if he had immunity for all official acts, he could certainly give it a whirl, let conservatives bring a civil lawsuit, and see what his new 13-member Supreme Court thinks of the idea.
Less audaciously, he could certainly find some legal way to put an end to all these MAGA-driven attempts to seat alternate electors in states whose outcomes they dispute, which they did in seven states in 2020 and by all accounts are preparing to do again this year. Yes, the GOP-led House would impeach him, but so what? There’d never be 67 votes in the Senate to convict. And as with court expansion, if it were clear that he had really won the disputed states, public opinion would be on Biden’s side, and he’d have pushed the Overton window dramatically in the direction of eventual abolition of the Electoral College.
Okay, this, too, is a little out there for Biden. More seriously, he could use an immunity grant to issue a series of rulings and orders that would be aimed toward two ends: one, shoring up some of his policy decisions against the inevitable Trump reversals should Trump be elected, and two, preemptively making it harder for Trump to do some of the things that the infamous Project 2025 pledges he will do.
On the former, for example, the Biden administration could undertake a number of administrative moves on the civil rights and labor fronts to make it harder for Trump to undo what Team Biden has done. And on the latter, Biden can find a way to make it basically impossible for Trump to implement his so-called Schedule F plans, under which Trump would give himself the authority to fire more federal workers and replace them with lackeys. And that’s just for starters. With immunity for official acts, Biden could preemptively defang a lot of what promises to be undemocratic and authoritarian about a Trump second term.
Of course, the Supreme Court might not even issue a ruling on immunity. It might just remand it back to the Washington, D.C., appeals court that ruled in February that Citizen Trump was not immune from prosecution—that is, the high court’s real intent may just have been to delay the prosecution of Trump on January 6 insurrection charges, not to shield him from prosecution.
But I hope we’ve all learned by now never to underestimate the cynical perfidy of this court majority. They may well limit presidential immunity, thinking they’re helping Trump remake the country in his fascist fashion. They’ll calculate that the old institutionalist Biden would never use his new powers in the closing months and weeks of his term. It would be delicious to see him prove them wrong.
Diane Ravitch's blog 
Trump’s claim of absolute immunity is absurd and it will be struck down 9-0 by SCOTUS despite the typical hysteria displayed again on this blog. Diane Ravitch has no problem with Joe Biden expanding executive powers to achieve left-wing policy goals. Just one example: the attempt to transfer hundreds of billions of dollars of student loan debts to taxpayers – without Congressional approval. I don’t approve of those debt transfers, but if majorities in Congress approve them and the President signs such legislation into law, I’ll accept the debt transfer as a constitutional act.
BTW, no President can unilaterally expand the number of Supreme Court justices. Various judiciary acts have established the number of federal judges at the district and appellate levels, including the Supreme Court. You claim to be an historian: how did you not know this basic fact about U.S. law?
https://www.britannica.com/story/why-are-there-nine-justices-on-the-us-supreme-court
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You need to read more carefully, Mr. Woodster. Neither Tomasky nor Diane suggested that a president could unilaterally expand the Court. Here, again, is what Tomasky actually said, caps mine:
Let’s start with the Supreme Court itself. Biden could wake up one day and announce that the court should have 13 members, or 15, and he could set about appointing the new associate justices and DOING HIS BEST TO RAM THEM THROUGH THE SENATE, offering Joe Manchin trillions in economic development for West Virginia to secure the retiring senator’s support, between now and Election Day.
The idea is that if the president had immunity, he could engage in numerous quid pro quibus to get the Senate to do what he wants.
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Ofc, Tomasky should have mentioned that the expansion legislation would have to pass both the Senate and the House. So, that was sloppiness.
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Ben,
Why can’t you leave a comment without insulting me? Take up your beef with Michael Tomasky.
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Because he is an offended ideologue
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“But I hope we’ve all learned by now never to underestimate the cynical perfidy of this court majority.”
That’s certainly clear enough. These few Handmaid’s Tale Ministers on the court have made an utter mockery of the ideas of judicial impartiality and equal justice for all.
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The Bushy and Trumpy Just Asses of the Extreme Court have made the concept of justice in the U.S. even more of a bad joke that it was thanks to a legal system that allows the rich endless appeals and sends goons to kill poor people selling single cigarettes on a street corner.
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Why abide by any law if there is to be immunity? Biden could just systematically eliminate all competition like the Nazis did. He could just get his NKVD to start a reign of terror and find some salt mines like Stalin.
This is all nuts. The Trumpistices are just buying time so he can pardon himself by destroying the concept of independent judiciary. The idea that they need to delineate or even discuss all the possibilities of what does or does not constitute a particular decision that might be immune from prosecution is silly. If I break the law while doing something relating to my job, quitting my job does not make me immune from the law. Why should we hard bake this privilege into the already imperial presidency?
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Nevertheless, it would be fun to watch the right wing extremists go even more berserk. These folks never consider consequences of their laws or court decisions that are designed to only address their own personal grievances while ignoring the impact of society at large.
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Presidents can order the CIA’s Special Activities Division to use SAC/SOG, an irregular military force that conducts direct action missions such as raids, ambushes, sabotage, targeted killings, and unconventional warfare. SAD/SOG teams can operate in any environment with limited to no support, and combine special operations and clandestine intelligence capabilities.
The members of these combat teams can’t volunteer. They are invited from the Army Rangers, SEALS, Special Forces, et al. to join SAC/SOG teams that operate at a level of security so high, that even future presidents and Congress rarely rarely ever find out what they’ve done in the past and present.
They are the cream on top of the cream as far as super soldiers are concerned. Stone cold very efficient killing machines who have the ability to kill and make it look like a natural death, a suicide or an accident.
Biden could order “targeted Killings” of Traitor Trump, the leadership of MAGA, extreme right billionaires like DeVos, the six conservative justices of the US Supreme Court, the manipulating leader of the federalist society, et al.
Trump would.
DeSantis would.
Abbott would.
None of them would hesitate to get rid of millions that didn’t kowtow to them.
I don’t think Biden would though, even as Dark Brandon. If I’m right, too bad. That is an opportunity that the Democrats should not miss if given the chance to strike first before that power ends up in the hands of someone like Trump and other MAGA fascists.
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and if Seal Team six assassinates a few members of the Supreme
court who are traitors to democracy? Biden would be immune for “an official act.” Just saying.
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If Biden is re-elected and Democrats gain control of Congress, the very first action they take must be to expand the number of Supreme Court Justices to 15, adding six liberal Justices to gain a 9-to-6 advantage.
The Dems should also impeach Kavanaugh for lying to Congress and Thomas for violating ethics standards. That would give liberals an 11-to-4 advantage.
With the Supreme Court on the liberal side and no longer obstructionist, the Dems could then pass a broad liberal agenda of legislation.
But: The Supreme Court must come first or it will remain obstructionist.
As for the Electoral College: The problem is not the Electoral College — the problem is that Congress is unconstitutionally apportioned. The apportionment of Congress is the key because it is the number of Representatives a state has that determines the number of Electors that a state has.
Our Founding Fathers created in the Constitution a two-part formula for determining the number of Electors each has, and the formula establishes that as the population of a state grows, the state’s number of the state’s Electors also grows so that it is impossible for low-population states to dominate the election of the President.
Today, however, we have the situation in which low-population states can decide who is elected President — minority rule…poison for a democratic republic.
Here’s the formula set forth in our Constitution to assure that the Electoral College vote for President would always reflected the majority vote of We the People:
1.First, in Article 1, Section 2, they established that “The Number of Representatives [to the House of Representatives] shall not exceed one for every thirty Thousand.”
In conjunction with Article 1, Section 2, they established in Article 2, Section 1, that the “Number of Electors [shall be] equal to the whole Number of Senators and Representatives which the state may be entitled to in Congress.”
Mathematically, the formula set forth in Article 2, Section 1, is 2x = y, with factor x = the ever-growing number of a state’s Representatives as population grows in 30,000 segments per Article 1, Section 2; then, factor 2 being the fixed number of a state’s Senators; and product y becoming the state’s number of Electors.
This simple formula shows our Founding Fathers’ political genius and foresight because a state’s number of Representatives is constantly growing as the state’s population increases, thereby increasing both the state’s representation in Congress and the state’s number of Electors in the Electoral College. This assured that the states in which the majority of Americans live would have the greatest representation in the House and the greatest number of Electors so that the President shall always be elected by and represent the majority of We the People.
The wisdom of our Founding Fathers notwithstanding, about a century ago Congress unconstitutionally ignored Article 1, Section 2, of our Constitution: In 1929, while Americans were distracted by the panic of the start of The Great Depression, members of Congress staged a power grab by passing the Permanent Apportionment Act that restricts the number of members of the House of Representatives to just 435, ignoring the Constitution’s one-Representative-per-30,000 population rule. Politicians love power, and this unconstitutional Act gave members of the House great political power because each Representative would have power over an ever-growing number of citizens — power that has immensely increased as our nation’s population has grown. Today, each Representative “represents” more than 175,000 citizens, instead of the constitutional formula of 30,000, with the result that the voice of individual citizens cannot be heard among the crowd.
In addition to giving ever-greater political power to members of the House as populations grow and silencing the voices of We the People, the Permanent Apportionment Act has brought us to the point at which a mere minority of voters shall be increasingly able to elect our nation’s President. The minority vote — not the majority vote of We the People — will rule our future.
Article 1, Section 2, says: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.”
In Article 1, Section 2, the antecedent of the phrase “actual Enumeration” is the preceding sentence which refers to the census count (“enumeration”) to “be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
The meaning of “enumeration” is “counting” the population. The U.S. Supreme Court determined that in the Constitution the word “enumeration” refers to a counting process, such as the census taking.
It is clear that “enumeration” refers to census count, not to the number of members of the House.
Nevertheless, for its own political power, Congress twisted the meaning of the term “enumeration” to claim that Congress has the authority to set the number of Representatives in the House of Representatives, that is, to has the power to “apportion” the House membership, as set forth in the 1929 Permanent Apportionment Act.
But, the legal and constitutional meaning of “apportionment” is far different from “enumeration”, as shown in Section 2 of the Fourteenth Amendment. The “apportionment” of members of the House of Representatives, that is, the number of Representatives a state shall have is still constitutionally based solely on the constitutional formula of one Representative for every 30,000 citizens.
That representation ratio is set forth in the Constitution and can only be changed by constitutional amendment, not by any mere Act of Congress. No such amendment has even been passed. The original one-Representative-per-30,000-census-population remains in effect.
Therefore, the Permanent Apportionment Act of 1929 is unconstitutional.
Today, with the total number of members of the House unconstitutionally frozen at 435, a President can be elected by states in which only a minority of Americans live because the Electoral College no longer reflects what our Founding Fathers established in our Constitution.
Americans, therefore, feel increasingly dissatisfied with the federal government that our Founding Fathers designed; and this dissatisfaction is understandable because today the voices of ordinary people are drowned out since each congressional Representative on average “represents” more than 175,000 citizens, instead of the constitutional formula of 30,000, with the result that the voice of individual citizens cannot be heard among the crowd.
All this sets the stage for internal turmoil and conflict that the enemies of America can and will exploit.
The 1929 Permanent Apportionment Act is not only constitutional — it has now brought our democratic republic to the brink of disaster.
Would the current Supreme Court declare that the Permanent Apportionment Act is unconstitutional, even though it clearly is?
Not on a bet, because that would give large population states with their large liberal metropolitan areas the ability to dominate Presidential elections, to control the House of Representatives, and to assure that our nation is ruled by the majority of voters instead of by a minority of conservatives.
And that’s all the more reason why, if Biden is re-elected and the Dems gain control of Congress, the Supreme Court must be expanded and Kavanaugh and Thomas must be impeached.
First: Control the Court.
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Joe Biden is an institutionalist, and I don’t expect him to try to expand the Court, even though the GOP used chicanery to install two of its members.
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Why stop with these actions? Since assassination is often mentioned with trump in power, why not have the Secret Service drag Trump to the nearest wall?
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Take out the tRump on 5th Avenue???
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I just listened to the podcast series American Scandal and its take on Iran-Contra. It turns out that in practice we have had presidential immunity for. a while now. While Reagan and Bush participated in meetings that approved policies that ignored Congressional statute, and their stated policies, the Senate, controlled by Republicans, quickly granted immunity to people like Oliver North, who admitted that he destroyed reams of documents once the arms for hostages scheme was revealed. Then Bush finished the project by granting pardons to virtually anyone else involved in the criminal obstruction of justice to protect himself from prosecution. The inability to impeach Trump for his crimes became further evidence that the President is untouchable. Ongoing abuses of the emoluments clause and the Hatch Act during Trumps term revealed an unwillingness to hold the executive branch accountable. Now two strong federal court cases are about to get buried because the Supreme Court has no problem with breaking the law. Now that criminal activity can be checked off by political expediency, I’m not sure we have a reason for laws.
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The proof that Presidents do not have “absolute immunity” for crimes committed while in office was Ford’s pardon of Nixon. If that immunity existed, Nixon would not have needed a pardon.
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I agree that the law states this and that normal interpretation implies the case against immunity. However, history shows us that Presidents have protections far beyond the average citizen. The pardon of Nixon is an example. Bush’s pardon of Casper Weinberger and his son’s flirtation, or actual complicity, in war crimes are all evidence that political circumstances in the U.S. cannot stomach holding the executive branch to account. The public was appalled by Nixon’s behavior. However, so called reforms to campaign funds et al have basically been abandoned since Watergate while protections of any kind have been left to the discretion of the Administration. Merchan as much as admitted this when trying to gag Trump’s worst impulses. Dick Cheney stated in an interview as he became vice president that his intent was to give greater power to the executive branch. We have always struggled to keep our president from becoming a king. If Trump wins, the long anticipated coronation will have begun.
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It was much more than “flirtation” with war crimes. Bush, Jr. and several of the major officials in his misadministration violated the most fundamental of international laws–the sanctity of the sovereign territory of a fellow UN member state–and did so on the basis of faked, cooked pseudo-intelligence abut nonexistent WMDs. Furthermore, they massacred civilians and bombed the holy hell out of civilian infrastructure and cultural sites, including museums and libraries. And don’t even get me started on the infamous Highway of Death, which involved the US carpet bombing fleeing soldiers stuck in the world’s longest traffic jam. All the stuff about the faking of the intelligence by Rumsfeld and Cheney and the others working with them is detailed in CIA Director Tenet’s autobiography, The Center of the Storm. These people are all guilty of war crimes and crimes against humanity. That they haven’t been tried before the International Court of Criminal Justice is a bad joke.
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