Biden, Supreme Court boost national unease

Gordon L. Weil

Two events – seemingly unrelated – reveal a major historical change taking place right now.

The first is the U.S. Supreme Court decision on presidential immunity.  The second is the heightened public sensitivity, caused by Joe Biden’s personal crisis, to the risks of our heavy dependence on the single person who holds the presidency.  The two are related.

Despite the belief that the Court decision was about a group of partisan justices showing their barely hidden support for Donald Trump, it was far more significant than that. It was a sharp turn in the history of the country.  What the Court decided applies to all presidents.

The question before the Court was the extent that a president – any president – is immune from criminal responsibility for their acts while holding the office.  It said there were three areas of presidential activity related to immunity.

First, when the president has been given power under the Constitution or acts of Congress and acted in line with that authority, they would be completely immune from charges.

Second, where the president acted at the “outer perimeter” of their legal authority, they are presumed to have immunity, though that presumption can be tested in court.  Charges would likely be brought by the Justice Department, an agency under the ultimate control of the president, who might assert immunity and prevent prosecution.

Third, if the president acts outside of their authority, they would have no immunity from prosecution.  Trump’s counsel has asserted that a president, as the commander in chief, could order the military to kill his political opponent and could not be charged with murder unless they were first impeached for the act.

Who decides on the type of presidential activity in question?  The Supreme Court’s answer is that the decision is made by the federal courts, and would inevitably end up at the Supreme Court.  If you had any question about checks and balances, here’s the proof they are dead.

This decision departed from the foundation of the country as laid out in the Declaration of Independence. The basic reason for the Declaration was to reject the unlimited power of the British king, who could do no wrong.  He was subject to no checks. The basic message of the Court decision is that the president can do no wrong, unless the Court decides otherwise.

The new decision does not overrule the power of Congress to impeach a president, but the Constitution makes it clear that impeachment is not punishment and does not decide the question of criminal responsibility.

Now, turn to Trump, who has promised his administration would take legal action against Biden and exercise unprecedented executive authority, and Biden, whose uncertain physical and mental health could lead him to similarly unrestrained use of power.  The possible actions of either of them gives heartburn to a significant portion of the population.

To be sure, the U.S. has little history suggesting that presidents normally carry out criminal acts.  And the issues surrounding the possible excesses of this year’s candidates may be an historical warning to avoid taking big risks in choosing presidential candidates.

If the possibility of presidential felonies is rare, the Court’s decision could have an effect that is more theoretical than real.  But its thinking may represent something more essential than White House criminality.

We may be focusing too much on Trump and too little on the fact that he has wide, popular support.  Many of his backers seem to favor a more authoritarian government, though a limited one.  They appear to want government to be both narrower and deeper.

Support for stronger central rule and less popular democracy is not limited to the U.S.  Though the left-of-center Labour Party won the most seats in the British Parliament, conservatives got more popular votes.  In the French elections, the conservatives equaled the moderates and left. The same is happening in Germany, the Netherlands, Hungary and Slovakia.

The Court’s decision may reflect a landmark, generational change. Post-World War II liberal democracy is losing ground to more authoritarian and nationalistic politics.  International agencies are weakening.  National governments are challenged both as regulators and service providers.

Because the Supreme Court has assumed a right to have the last word, not specifically given it by the Constitution, it may have turned itself into a prime political issue.  Congress was supposed to be the dominant branch of the federal government, but it has let its powers slip away.  A powerful president and an unchecked Supreme Court continue to rise.

The Court is dominated by a well-disciplined philosophy and is not the neutral umpire we were promised by Chief Justice John Roberts.  Just as compromise is missing in Congress, it is missing at the Court. 

These developments place us at an historical turning point, which demands our attention and concern. 

Political redlines vanish amid partisan fury

Opens way for more authoritarian rule 

Gordon L. Weil

“How dare you attack the physical appearance of another person,” fumed Democratic Rep. Alexandria Ocasio-Cortez, after GOP Rep. Marjorie Taylor Greene criticized the appearance of another female House committee member. Greene’s statement might have had racial overtones.

Greene had lashed out against a colleague’s eyelashes and Ocasio-Cortes’ retort, dissing Greene’s figure, both crossed a “redline” of acceptable behavior. However strong their partisanship, members of Congress traditionally have stayed away from personally attacking their opponents based on their appearance, race, age or religion.

A “redline” is supposed to serve as a warning: if you cross the line, you risk suffering adverse consequences. Hence, the relatively minor House committee exchange.

The idea is that you “draw a line in the sand” that is the acceptable limit. It’s a poor analogy, because, given the softness of sand, that line is increasingly and easily blown away.

In the late 1940s, Arthur Vandenberg was a Republican senator during Democratic President Harry Truman’s administration. While he might oppose Truman’s foreign policy, he asserted that Congress should unite behind the policy once adopted and make it bipartisan. “Politics stops at the water’s edge,” he said. That was a redline.

Recently, New York Republican Rep. Elise Stefanik addressed the Israeli parliament, the Knesset, to criticize President Biden’s Israel-Gaza positions. She is a member of House leadership and an ardent supporter of Donald Trump. Vandenberg’s redline crossed.

Her party’s once and hopeful president shows no restraint in attacking the policies of other American political leaders while abroad. He sees the world as his campaign stage and does not worry that a lack of foreign policy continuity, even allowing for its evolution, is essential for maintaining confidence in the U.S. For him, politics does not stop at the water’s edge.

When political leaders adopt no-redlines policies, the effect can get out of hand. People can take politicians’ wild admonitions as permission or even encouragement for taking physical action. A federal court may someday get to decide if the January 6 Capitol insurrection responded to Trump’s call to “fight like hell.”

Members of Congress, judges, prosecutors and witnesses are now physically threatened. If the operation of the federal system is pushed aside by threats or injury caused by a relative few incensed about a decision, it is also endangered. That system is not perfect, but it has rules, the redlines all have agreed to observe to protect officials.

The bias of Florida federal District Court Judge Aileen Cannon toward Trump is so evident that it is embarrassing to her and the judiciary. The people rely on courts to provide at least the appearance of not taking sides between the parties. But her efforts to excessively complicate and delay the Trump documents retention case destroy any such impartiality.

Supreme Court Justice Samuel Alito’s home flew an American flag upside down at the time of the Capitol insurrection. That intended political support for Trump is likely illegal under the Flag Code and raises doubts about his fairness in political cases. He blamed it on his wife, a claim that insults peoples’ intelligence and cannot pass the straight-face test.

His apologists resort to whataboutism, claiming that Justice Ruth Bader Ginsberg opposed candidate Trump before the 2016 election. Assuming that’s true, two wrongs still don’t make a right to wipe out an established redline against the appearance of bias.

Before that same election, a tape revealed Trump’s having groped women, feeling his celebrity gave him license. Surprisingly even to him, society’s redline against such behavior was swept away by millions of voters.

The U.S. House Speaker heads a cornerstone institution of the federal government. Part of the Speaker’s job is to maintain the dignity and stature of the House, independent of the Senate and president. But Speaker Mike Johnson dashed to New York to stand in the street supporting Trump in a N.Y. state trial. Redline gone.

Given the power, role and influence of the president, candidates and incumbents have for decades made their full medical and tax records public. Trump never did either and the media took note and simply moved on. Trump and Biden, for his medical data, have given themselves a free ride. Redline deathbed?

Customs have grown up to make the bare bones of constitutional government work. Over time, these customs take the form of the redlines around the behavior of the people who operate that government. When redlines can be crossed without any penalty, the essential understandings that allow a political system to operate across a vast territory and population can be lost.

Of course, customs and redlines must evolve as the world changes. What was once not allowed can become acceptable. But this evolution must continue to protect or enhance the people’s rights. If it is abrupt, arbitrary or self-serving, crossing redlines leads to more authoritarian government.