Gordon L. Weil
The furor over the shooting of two survivors of an armed attack
on a Caribbean vessel is all about who gave the execution order.
But there’s a lot more to it than that. It gets to the essence of the Trump
presidency.
The central issue joins the Supreme Court’s 2024 decision on
presidential power with Trump’s view of himself. The combined effect may be to have created a
presidency of unlimited power. The only restraints
on Trump are either the formal, if extremely remote, possibility of his removal
from office, or an electoral rebellion by voters across the country.
The question before the Supreme Court was whether presidents
could face criminal charges for actions taken while they were in office. To answer that question, the Court made a
sweeping statement about the extent of presidential powers.
Presidents are completely immune from any legal control when
they exercise the specific powers delegated to them in the Constitution, it
ruled. For example, the power to issue
pardons, liberally used by Trump, cannot in any way be questioned or limited by
Congress. Acting as commander-in-chief, potentially
against Venezuela, may also be immune.
In contrast, the Court found that presidents are completely
subject to control when they clearly act in a private capacity, without any
official authority being involved. Such actions may be difficult to identify.
A problem arises when they exercise powers that are at the
edge of their authority or which they share with Congress. The Court said they must be presumed to enjoy
immunity, though the Court will have to determine case-by-case if they went too
far. It made no judgment on Trump, but
sent the cases back to the district courts where they died when he became
president.
The Court reveals that it is highly unlikely to find that
presidents had exceeded their legal authority. If they applied the law differently from congressional
intentions by using their own interpretation, they would be presumed to enjoy
immunity. Trump may be right when he
claims he is not strictly bound by the law.
His immunity covers his appointees, like Hegseth.
Relevant to the Caribbean case, the Court planted a little noticed
bombshell. The Constitution requires
presidents to “take Care that the Laws be faithfully executed …,” but the Court
ruled that requirement applies “domestically.”
It seemingly set a different standard for the exercise of presidential
powers as commander-in-chief and in managing foreign affairs.
Destroying alleged drug-smuggling vessels on the high seas
is not “domestic.” Might the president avoid
faithfully executing the laws of war even if they have been adopted in U.S.
law?
Could the president order an invasion of another country
without a declaration of war if there is no remedy besides impeachment?
Can the president allow violations of the Nuremberg rules of
international law that ban subordinates’ claims that they were “just following
orders?”
The Court seems to say that if presidents act as commander-in-chief,
they are not bound by the law. They must
only obey the Constitution, which offers a lot of leeway in interpretation.
Most past presidents, with the notable exception of Richard
Nixon who quit before he was convicted, have followed constitutional understandings
that embody the spirit of the American Revolution against the British king and the
intentions of the Framers of the Constitution.
Trump has pushed his authority beyond those historical limits.
His approach appears to flow from an inbred notion of his personal
superiority. His special qualities allow
him to disrespect other people and nations.
Nobody has the right to his respect or even courtesy, because he
operates on a uniquely elevated level, as validated by voters.
When it comes to immigrants, he seeks to operate as prosecutor,
judge and jury simply to exercise his personal prejudices, especially involving
non-white people and nations. His
policies are predicated on obvious falsehoods.
He must know he is lying to Congress, the media and the public.
He has no respect for Congress. Its Republican majority clings
to their seats and privileges, and appease his excesses to avoid his backing a
primary challenger. They have abdicated
the preeminent constitutional role of Congress, thus failing to hold him
accountable. He ignores them with
impunity. He regards the Democrats as “the
enemy.”
If his policy runs against the law, he overrules it. His policy then becomes the law. See DEI. See USAID.
Perhaps he has gone too far with the Caribbean killings or having been
caught trying to escape his previous promises about revealing the Epstein
files. Congressional Republicans seem
restive, but it’s probably too early to call it courage.
The American Republic is united not by common ethnicity, but
by common ethics. With the Court’s backing,
Trump sheds historical balances and restraints and offers instead dangerous
change, with the clear message, “I am the law.”
