Senator Schumer Goes Nuclear With "No King Act"

The law would direct lower courts how to reject claims of presidential immunity, and strip SCOTUS of appellate review.

Very little actually surprises me anymore. Even something unexpected is generally within some range of possibility that I anticipated. The "No Kings Act," which was introduced today by Senate Majority Leader, surprised me. No, just not surprised. It stunned me. I was actually speechless.

At a high level, the statute purports to reverse Trump v. United States, eliminate criminal presidential immunity (but not civil), and divests the Supreme Court of appellate jurisdiction over any prosecution of a former President, or even a challenge to the statute itself.

Let's walk through the bill. Section 2 explains that the "purpose" of the law is to "clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress." Clarify? That statement expressly conflicts with the holding of Trump. And Section 3 provides, "A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress." This statement flatly contradicts how a majority of the Supreme Court interpreted Article II.

Curiously, the statute says nothing at all about civil immunity under Nixon v. Fitzgerald. Apparently that made-up immunity, which was the basis of Chief Justice Roberts's decision, is A-Okay. Also, nothing in Trump even hinted that the Vice President has immunity. This provision could have some unintended consequences for the Vice President acting as President of the Senate, who (under modern law) receives some protections under the Speech or Debate Clause.

It gets worse, The law provides that federal courts "may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress." If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent--they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts "may not consider' whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don't get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn't quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

Section 4 of the law modifies judicial review of "any criminal proceeding commenced by the United States" against a President or former President. Actions can be brought in the applicable district court. But here comes the kicker: the judgment of the court of appeals with regard to immunity is final!

"The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President."

A conviction of the President of the United States would stop with the inferior courts, and 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 he had appointed the majority of judges on that court!

What else can SCOTUS not do? The bill lists eight items that the Supreme Court cannot do it itself, or direct other courts to do:

(A) dismiss an indictment or any other charging instrument;

(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;

(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;

(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;

(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;

(F) overturn a conviction;

(G) declare a criminal proceeding unconstitutional; or

(H) enjoin or restrain the enforcement or application of a law.

This is breathtaking. If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him. I'm old enough to remember debates about the Suspension Clause and jurisdiction stripping from the Bush era. Democrats apparently favor full the full panoply of habeas rights for the mastermind of 9/11, but not for Trump. Priorities. If only Lincoln had such powers! John Merryman and William McCardle could not be reached for comment.

So what should the judiciary do with such a statute? Well, the bill imposes strict limits on whether these restrictions can even be challenged. Facial challenges must be brought within "180 days after the date of enactment of this Act." As I think about the Court's "facial" analysis in Rahimi and NetChoice, I cringe. Certainly this statute must have some constitutional application? So a facial challenge would fail, right? What if the President breaks the law on Etsy?

And if President Harris wins, and lets this statute go into effect, a facial challenge could never be brought. To test the constitutionality of this statute, future Presidents would have to wait to be indicted, after they leave office. A facial challenge would no longer be possible. Everyone who criticized Whole Woman's Health v. Jackson and S.B. 8 can switch sides. I can think of standing arguments why a sitting President would be able to challenge this law in office, notwithstanding its limitations--talk about a chilling effect--but I'll save those points for another time.

And an as-applied challenge "may only be brought not later than 90 days after the date of such enforcement or application." I don't even know when this clock would start ticking. If a former President is indicted, and a district court (following this statute) denies immunity, would the defendant then bring a collateral civil challenge to the statute in federal court? Wouldn't there be abstention doctrines at play? Wouldn't it make the most sense to consider the immunity issue on direct appeal--and that appeal would necessarily consider the constitutionality of the "No King Act"? Even under Justice Barrett's conception of immunity, the denial of immunity would trigger an interlocutory appeal. Maybe I'm missing something, but I have no idea how an as-applied challenge would even work here.

Let's say that a former President manages to bring some sort of as-applied challenge in a timely fashion in the right court. The statute even purports to define the appropriate standard of review: "A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional." A presumption of constitutionality, coupled with a "clear and convincing evidence" standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.

Is there any other similar statute that directs the courts to apply a particular standard of review? Some of the bills to "overrule" Loper Bright direct Courts to apply Chevron deference. That could work under the APA (assuming Justice Thomas is wrong on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret a claim of constitutional immunity? I think the Supreme Court would find this statute unconstitutional, but they would have no power to hear the case!

Oh, and by the way, challenges to the statute itself can only be litigated in the District of Columbia District Court, and the D.C. Circuit. And the buck stops with Chief Judge Sri Srinivasan:

In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not 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) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

More jurisdiction stripping!

To be sure, this bill is prospective. We can imagine what an Attorney General Jeff Clark would do with this bill, right? Certainly this bill can't be about Trump, right? Ex Post Facto Clause, right? Wrong.

If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.

Huh? Am I reading this right? Any existing criminal that is in effect now could be brought under the auspices of this bill. In other words, if any pleadings are made about immunity in Judge Cannon's court, she would then be required to reject an immunity claim? Could this be the rule?

There is one provision that I can't quite make heads-or-tails of:

No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.

What is going on here? I think this is hinting at an issue where some other federal court, hearing some related issue, may opine on the constitutionality of the statute.

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 taken to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection. This provision shall be known as the "Stealth Impeachment of Judge Matthew Kacsmaryk Law."

No, Section 6(b)(vi) is not in the bill, but you believed it. And you better believe progressives will try to strip the Fifth Circuit of jurisdiction.

***

Let me be clear. This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill. Remember, this is not some sort of fringe proposal from the Squad, but was introduced as a priority bill by the Majority Leader. The whirlwind cometh. Once the Supreme Court's jurisdiction is stripped for presidential immunity, it is only a matter of time before similar bills are passed for abortion, the Second Amendment, RFRA, and so on. This bottomless hole keeps going deeper.

President Biden's pointless op-ed, which did not even bother to specify whether a statute could impose term limits, was apparently just a warm-up act. Senate Democrats are going all-in on destroying the judiciary as we know it. Remind me again how cataclysmic it was when Trump referred to "Obama judges"? I welcome comments from the Never-Trumpers who think Kamala Harris is the last chance to save our republic.

Comments

[Noscitur a sociis]

I was actually speechless.

Guess you got better!

[Brett Bellmore]

Didn't say his fingers were paralyzed...

[M L]

It appears the effect only lasted a few minutes.

[Longtobefree]

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

I guess that word 'supreme' doesn't mean what I think it means.

[Martinned2]

It doesn't, no.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

[Dan Schiavetta]

+1

[Brett Bellmore]

I still think Story was right about that clause: The power to make such exceptions allowed Congress to move topics from the Supreme court's appellate jurisdiction to its original jurisdiction. It's not the power to deny them jurisdiction at all.

[JoeFromtheBronx]

Justice Story in his commentaries:

"In the next place, the jurisdiction, which is by the constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a state is a party. And congress cannot constitutionally confer on it any other, or further original jurisdiction."

He did argue that original jurisdiction could optionally be given to lower courts, "that concurrent original jurisdiction in those cases might be vested by congress in inferior courts."

The Supreme Court was not given full appellate jurisdiction by the Judiciary Act of 1789 co-extensive to the reach supplied by Art. III. It was "denied" jurisdiction in certain areas in that fashion.

Story argued it is likely presumptive that SCOTUS has appellate jurisdiction cited in Art. III unless Congress actively legislates. He grants this isn't the only interpretation available.

"There is certainly very strong grounds to maintain, that the language of the constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by Congress; and to require this action to divest or regulate it."

He does not deny that Congress has the power to "divest" appellate jurisdiction in various ways. And, again, it very well did so. The Supreme Court's power to review expanded in later years & the 20th century.

https://press-pubs.uchicago.edu/founders/documents/a3_2_2s11.html

[TheAmazingEmu]

I don't think that's right. Look at Boumediene. Congress removed appellate jurisdiction for cases coming from Guantanamo Bay. The Supreme Court agreed, however, that common law rights of Habeas Corpus (not statutory rights) were still applicable and they had authority to rule as long as it fell under common law Habeas Corpus. They didn't say that they could hear the case no matter what under the same principles as before as a matter of original jurisdiction.

Using something other than precedent, we can look to the text itself. Original jurisdiction is spelled out very clearly in the text of the Constitution and can't be added to.

[Dilan Esper]

The current court is very pro-jurisdiction stripping, because it is usually used to screw over habeas petitioners and immigrants. I actually suspect despite the Right's problems with this statute that if it were actually enacted the Court might be inclined to uphold the jurisdiction stripping rather than call into question its habeas and immigration precedents.

[defaultdotxbe]

Seems like a novel interpretation, otherwise I would expect a lot of laws to have clauses denying the court jurisdiction. There would be no need to change the ideological makeup of the court through reform or expansion to overturn cases like Citizens United, Heller, or Obergell, just pass a new law and deny the court jurisdiction to strike it down.

[myself]

Lots of countries have some version of a notwithstanding clause that allows the legislature to override the constitution.

It's very rarely used, but it exists as a 'break glass in case of emergency' for the lawmakers.

I'd argue the court making the President virtually immune from criminal prosecution is just such an emergency.

[Brett Bellmore]

Well, it would be, if it had actually happened.

Making the President virtually immune from criminal prosecution for exercising the powers of his office, on the other hand, simply restores us to the status quo ante, existing before the lawfare against Trump was initiated.

Schumer is attempting to use his party's hatred of Trump as leverage for a radical power grab by the legislature. Testing out a model for ending constitutional review of legislation.

[Sarcastr0]

This isn't a radical power grab, Brett. It's not going anywhere, and if it did, do you think it would withstand judicial review?

I don't like messaging bills like this, but you and Blackman are being way overdramatic.

[Brett Bellmore]

The radical power grab is Section 4 of the law.

This law, in a fashion we’ve not seen before, attempts to insulate itself against judicial review by a very aggressive form of jurisdiction stripping. Not only are the courts that are allowed to address its constitutionality as applied carefully limited to courts the Democrats presently control, and can expect to control for some time to come, but the law, specifically including section 4 itself, can only be challenged facially during a very narrow window of time, by narrowly specified plaintiffs. Sua sponte relief is absolutely prohibited, so no court can work around the absence of a plaintiff.

All they’d have to do is not attempt any enforcement action for a couple hundred days after enactment, and it would be utterly impossible under the terms of this law for the law’s constitutionality to ever be facially challenged.

The radical power grab here is that this law embodies a never before attempted technique that could be used to put ANY future law beyond constitutional review.

[tylertusta]

Democrats tried something similar earlier this year.

That Dem-backed immigration bill that McConnell foisted on his caucus had a provision to force all cases to go through DC, and not where the plaintiff was harmed.

If Democrats have tried it twice in one year, it’s going to rear it’s ugly head again and soon.

But they’ll regret it. Just like they learned to regret ending the judicial filibuster, a short-sighted attempt to strip SCOTUS of jurisdiction with a bare majority will be used against them.

[Sarcastr0]

Noted Democrat Mitch McConnell?

[Brett Bellmore]

That's not what he said, Sarcastr0. He said it was a Dem backed bill, and McConnell foisted it on his caucus.

Both are true.

Tylertusta, they tried directing all cases to the court they controlled, sure. But this is the first time I know of that they've suggested this particular technique for flatly outlawing any facial review of a law's constitutionality.

But, you're right, now that they've tried it, they'll keep trying it.

[tylertusta]

Brett: I agree.

While the particulars of this escalation are somewhat new from mainstream Democrats, it's well within the character of the modern Democratic Party that has decided that a temporary power grab is worth whatever price they pay later.

[Sarcastr0]

OK, chief. Courts are rendered powerless by this law; that's how it'll play.

Better go take up arms now.

[Brett Bellmore]

It SAYS they're rendered powerless, doesn't it? I mean, have you actually READ section 4 of this law?

If they actually enacted this legal atrocity, and got away with it, why wouldn't they start doing it any time they wanted to enact legislation they knew wouldn't survive judicial review?

[Sarcastr0]

You can't get past what the bill says in order to think about it's actual effect.

[Brett Bellmore]

I can't get past what the law actually says. Did you really type words that stupid?

[Sarcastr0]

The text does not exist in a vacuum. There's three branches in play here, and you're ignoring all three of them.

Congress because this doesn't have a push to pass

Executive because this flies in the face of their implementation plan which specifically calls for an Amendment

Judicial because this doesn't pass muster Constitutionally, (cf Noscitur on the 6A), because they are infallible on account of being final, and because theirs is the ox being gored.

Our civic institutions matter. Unless you're just here for the D R A M A

[Ed Grinberg]

OK, chief. Courts are rendered powerless by this law; that’s how it’ll play.
Better go take up arms now.

From the OP:

This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill.

No need to take up arms quite yet.

[Sarcastr0]

Sure, Ed. If you turn to Blackman for your legal analysis I would expect some weird choices.

[tylertusta]

Thanks again for your ever insightful comment, Peanut.

[Riva]

Fun fact. After judgment in a case of impeachment, '...the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” We know how much democrats like to bring impeachment cases, so I don't understand all the hysterics when Congress already has the power to remove criminal immunity.

[Randal]

Oh Riva, the stupidest commenter here. That was Trump’s argument. The court went further. A president retains his criminal immunity for official acts, even if he’s impeached for them, according to SCOTUS.

[Riva]

No, banana breath, President Trump’s argument was that the Impeachment Judgment Clause was a source of immunity. The Court did not rule that an impeached and convicted president was immune from prosecution. Nor would they because the constitutional text clearly specifies that he would not be. Now you could have commented that Schumer’s unconstitutional overreach is much broader and would not require impeachment and conviction but you don’t strike me as too smart. But feel free, Randy, to point out where the Court held that an impeached and convicted president would be immune from prosecution because I didn’t see that in the majority opinion.

[Brett Bellmore]

Yes, that was his argument. It's a stupid misreading of a clause that simply established that impeachment didn't invoke double jeopardy.

[Riva]

Well, the impeachment aspect was only one of his arguments, and not his main one. But regardless, he never argued, and the court never held, that an impeached and convicted president retained his immunity from prosecution. At least as to the subject of the impeachment and conviction, an impeached president's liability seems pretty clear.

[Brett Bellmore]

I suppose he never argued that because he was acquitted both times.

[Riva]

I guess the question is whether the basis of the ruling requires the rejection that impeachment and conviction could operate to remove whatever immunity is provided by the constitutional framework, at least with respect to the subject of the impeachment. I’ll concede it may and I could be wrong. But I’ll never concede the constitutionality or propriety of Schumer’s crap.

[TheAmazingEmu]

So a sitting President could presumably try to get the case removed to the Court's original jurisdiction (or seek an injunction directly in the Supreme Court). Former Presidents, however, may not have the right to appeal to review the issue.

It's an affront to due process and a sense of fundamental fairness (leaving aside whether the original case had any of those qualities), but there's a strong argument for Constitutionality.

[Devin Watkins]

Even if this got enacted, I suspect the Supreme Court would issue a writ a prohibition or a writ of mandamus to the Circuit Court that the statute is unconstitutional and order that it should be disregarded.

[Longtobefree]

If they don't, "we the people" may.

[Purple Martin]

That may well apply to this particular bill, but of course no one on either side has the intention or expectation of it ever—ever—being enacted.

It's just a shot across the bow, signaling the court that Congress fully understands the originalist, textualist and living constitution interpretation of Article 3, Section 2's appellate jurisdiction stripping Exception & Regulations clause.

And just because they have no intention of using it here, doesn't mean they wouldn't use it to strip SCOTUS jurisdiction over new legislation/regulation imposing a binding ethics code or term limits, under the extensive body of precedents that no person can be the judge of their own case.

[Brett Bellmore]

It's a shot across the bow similar to FDR's Court packing attempt: A signal to the Court that unless the Court stops ruling in ways Democrats dislike, Democrats are going to destroy judicial review as we presently know it.

How this signal is received depends a lot on the upcoming election. If Schumer's party loses control of the Senate and the White house, the Court will likely decide the canon shot across their bow was a dud, and continue as before.

If they come out of this election controlling the Presidency and both chambers of Congress? The Court will likely cave, and become Schumer's lap dog, in the hope of retaining at least some capacity to enforce the Constitution at the margins.

Republicans need to take this seriously: Democrats have been taking long standing norms our political/constitutional system relies on, and playing legal Jenga with them. The whole stack is going to come falling down pretty soon, if Republicans don't act proactively for once in their lives, and transform some of these norms into black letter law.

It's time to hold a constitutional convention, while there's still time to do it, and get some amendments to take some important informal elements of our constitutional structure and make them formal.

[Sarcastr0]

Telepathy in service of drama. Yet again.

Republicans need to take this seriously
Sure.

And when Trump was elected and everyone was talking about norms, YOU were the one saying some norms need to be broken. Now it's paeons to norms.

[Brett Bellmore]

You're at the point where you call just reading the stupid bill "telepathy".

[Sarcastr0]

It’s a shot across the bow similar to FDR’s Court packing attempt: A signal to the Court that unless the Court stops ruling in ways Democrats dislike, Democrats are going to destroy judicial review as we presently know it.

That's not reading the bill. That's telepathy.

The whole stack is going to come falling down pretty soon, if Republicans don’t act proactively for once in their lives, and transform some of these norms into black letter law.
That's Dr. Ed 'the center will cease to hold' drama.

[Brett Bellmore]

Reading the bill arrives at destroying judicial review as we presently know it, Sarcastr0. That's why you had to dismiss reading the damned bill as meaningless.

[Sarcastr0]

You and Blackman go have fun with the drama you've bought.

I'm sure another thing for you to jump up into a crisis will be along next week anyhow.

[Don Nico]

“That’s telepathy.”
"that's dramma.'
Two of your standard comments when you don’t have a substantive reply. People are on to such dishonesty

[Sarcastr0]

I say telepathy a lot TO BRETT. Did you ever notice that. No. Because for a long time you’ve not been engaging, just namecalling.

That’s shallow and lazy.

Do better.

[Darth Buckeye]

I am pretty certain that there would be a 7 to 6 (or maybe even a 9 to 6) majority ruling that the statute is constitutional. Ditto for a subsequent statute granting statehood to DC and federal control over all federal, state, and local elections. Live ballots sent to every registered voter to be counted within 10 days after election day. No proof of id needed.

Eventually we would have a statute that outlaws all political parties other than the Democratic party

[Brett Bellmore]

Ironically, if the Court were to rule that this proposed statute were constitutional, they'd be violating it. Because it says that they're not allowed to hear any case relating to the constitutionality of this act.

[Longtobefree]

Suggestion for Trump, given a total victory:
Pass the "No Smartass Senator" act of 2025.
Any time a senator says something this stupid, the president may designate him as having resigned and forfeited his pension, as well as having donated all campaign funds to the Treasury.

[Noscitur a sociis]

If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him.

I don't think this is right. The jurisdiction stripping only prevents the Supreme Court from granting relief "on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President". It wouldn't stop them from granting relief because (e.g.) the president was detained without due process or in violation of the Bail Reform Act.

[Social Justice is neither]

After what we've seen the last few years you have to be truly stupid or evil to actually believe that.

[Noscitur a sociis]

Uh, what?

[Noscitur a sociis]

Seems pretty obviously unconstitutional, including for Sixth Amendment reasons:

SEC. 4. JUDICIAL REVIEW. 22

(a) CRIMINAL PROCEEDINGS.—Notwithstanding any other provision of law, for any criminal proceeding commenced by the United States against a President, former President, Vice President, or former Vice President for alleged violations of the criminal laws of the United States, the following rules shall apply:

(1) The action shall be filed in the applicable district court of the United States or the United States District Court for the District of Columbia.

[Brett Bellmore]

Essentially it's intended to be unconstitutional. If the Court doesn't rise to the bait, and immediately strike it down in violation of its own terms, then Chuckie has proven out a technique for putting any future law beyond judicial review.

But if they DO rise to that bait, then Chuckie has a colorable argument for impeaching their asses.

[Sarcastr0]

Sure, dude, entire Republican bench gonna get impeached; Dems just need a colorable reason.

How do you live like this?

[Brett Bellmore]

How do you live ignoring that your party has a Congressional leader who wants to abolish judicial review of the constitutionality of laws?

[Sarcastr0]

I don’t think you’re politically naïve enough to not know how a messaging bill works. Suffice to say, it's instrumental and thus not a great insight into what Schumer wants.

I don’t like messaging bills that are facially unconstitutional as a play, but that’s as far as this goes.

[tylertusta]

Court packing is nearly the Democratic Party platform at this point, and now Schumer is putting out radical bills.

Your protests here ring hollow.

This is the shape of things to come.

[Sarcastr0]

1. No, it's not. Wasn't even part of Biden's court reform plan.

2. This isn't court packing.

This is the shape of things to come.
Some people are hard up for a villain these days, with Biden gone.

[tylertusta]

Sarcastr0, where did I say I was only talking about Biden’s plan?

Senator Whitehouse sent an inimicus curiae brief to SCOTUS a few years ago threatening to pack the Court if they didn’t rule the way he wanted on a case.

Leftists demanded that Biden and Congress pack the courts in 2021. Biden, to his credit, handed the question off so it could die.

But Biden brought it back because he's an opportunistic fuckwad.

This isn’t court packing.

The fun thing about leftists is that not only are they often high on their own supply, but they also forget that they changed the rules and then are shockedpikachu.gif when they later get their faces rubbed in it.

Dictionary.com defines the term “court packing” as:

…the practice of changing the number or composition of judges on a court, making it more favorable to particular goals or ideologies, and typically involving an increase in the number of seats on the court

By imposing term limits, Biden's plan would immediately create three vacancies among the Court’s most conservative members, whose seats would ostensibly be filled by leftists.

[Sarcastr0]

A part of the Dem platform, but left out of the President's plan. Sure, chief.

Biden brought it back because he’s an opportunistic fuckwad
You *just said it wasn't part of his plan*
Also, what opportunities is Biden seeking? Dude's not running again.

Also the 'this' in my comment is the bill in the OP. Not whatever else you want to dwell on.

You strain for oppression where none is coming. Alas, your enemies are not so stark.

[tylertusta]

A part of the Dem platform, but left out of the President’s plan

I said "is nearly the Democratic Party platform." You're 0/2 on accurately describing things I've said today, Peanut.

Also, what opportunities is Biden seeking? Dude’s not running again.

Legacy.

You strain for oppression where none is coming. Alas, your enemies are not so stark.

Merited impossibility strikes again.

[Don Nico]

"I don’t think you’re politically naïve enough .."
move those goalposts when you have no honest reply.

[MatthewSlyfield]

That is basically how the Andrew Johnson impeachment happened.

Congress passed a law (Tenure of Office Act) requiring Senate approval for removal of cabinet secretaries.

Johnson was impeached for firing the Secretary of War.

20 years later the Tenure of Office Act was repealed.

https://www.senate.gov/about/powers-procedures/impeachment/impeachment-johnson.htm#:~:text=By%20mid%2D1867%2C%20Johnson's%20enemies,the%20Radical%20Republicans%20in%20Congress.

https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867)

While evaluating the constitutionality of a similar law in Myers v. United States (1926), the Supreme Court stated that the Tenure of Office Act was likely invalid.[3]

[JoeFromtheBronx]

The "or" suggests to me that there is a way to interpret this using canons of constitutional avoidance.

[Kleppe]

"No, Section 6(b)(vi) is not in the bill, but you believed it."

Up until the last line about "stealth impeachment," I will admit: you did in fact get me.

[bernard11]

It's not nuclear, just a non-explosive noisemaker.

There are lots of non-serious “rile up the base” bills introduced every session.

This time Schumer did it. OK, but if you want to criticize it criticize the practice, not one Democrat who introduced one.

[Kleppe]

I don't entirely disagree with your sentiment, but I think it IS different when it's being done by the Senate majority leader and not, say, some random freshman representative.

[Commenter_XY]

It is a bad practice. Senator Shyster deserves the criticism.

[Brett Bellmore]

He came by that case of "resting evil face" legitimately.

[Kazinski]

Nah, criticize them all, by name and by the legislation.

Just like I criticized the Tennessee hack who introduced articles.of impeachment against Harris last week, or Lindsey Graham for introducing federal abortion regulation.

Its not as bad as Schumer's reap the whirlwind speech but its up there.

[Lee Moore]

I agree with Bernard. He who is surprised by Chuckie grandstanding has been living under a rock since the founding.

[Martinned2]

Who knew that unconstrained power might be a bad thing?

[Michael Ejercito]

In what way is power unconstrained?

[Sarcastr0]

Yep, it’s a bad show.

But you sound like you’ve never heard of jurisdiction stripping before.

[darkknight9]

I haven't heard of it.

Closest experience to "jurisdiction stripping" was seeing a dancer calling herself Judge Judy.

I've never thought of gavels being all that phallic before, but...

[JoeFromtheBronx]

Apparently that made-up immunity, which was the basis of Chief Justice Roberts’s decision, is A-Okay.

It is a “made-up” immunity, but civil immunity, especially one in place for over forty years (after a 5-4 ruling), is not as bad as the new criminal immunity ruling. Not a-okay.

Noting the petty shot at President Biden’s “pointless” op-ed [compare Prof. Dorf’s piece on it at his blog Dorf on Law], it cited an amendment to fix the immunity decision.

The proposal here going beyond that is unlikely to pass. It is not, for instance, co-sponsored by each Democratic senator. A quick count shows over ten Democrats alone didn’t sign on.

We are far from “all-in on destroying the judiciary as we know it” after SCOTUS worked toward destroying basic principles of the rule of law. I won’t say they “destroyed” it since I don’t want to use overblown hyperbole.

There will — like with the Republicans on other matters — be a variety of proposals. Only a subset will have any chance of passing.

I understand but don’t agree with the hardball tactics here. It is not “Trump Derangement Syndrome.” It is not “deranged” to understand the reality of how bad Trump is & how bad the ruling of the Court is.

The opinion is particularly horrible. That is why President Biden supports a constitutional amendment to override it.

This isn’t the way to do it. I don’t know if the judicial review portion will allow Trump to raise a claim — I’m inclined to think he would at least try — and if he does “Democratic majority” or not, I think the lower court judges on the D.C. Circuit would hold it unconstitutional. There is no good reason to think they won’t accept binding superior court precedent.

[Michael Ejercito]

It is a “made-up” immunity, but civil immunity, especially one in place for over forty years (after a 5-4 ruling), is not as bad as the new criminal immunity ruling. Not a-okay.

What is bad about criminal immunity?

[David Nieporent]

Crimes are bad.

[Michael Ejercito]

So obstruction of justice is bad?

[Riva]

Kamala 2024 ” You think the country went to shit over the last 4 years, you ain’t seen nothing yet”

[Kazinski]

I guess legislation like this is the number one reason we can't allow Democratic majorities in the House and Senate.

[tylertusta]

Yes.

Because if they're powerful enough to muscle that through Congress, they're powerful enough to pack the courts.

[Riva]

One is rather spoiled for choice for reasons why democrats should be kept as far away from the levers of power as possible

[Sarcastr0]

MAGA people telling MAGA people this is more proof they gotta be more MAGA.

[Brett Bellmore]

Even you find the bill offensive enough that you have to claim it's not meant seriously, and attack me for being concerned about what its actual language says.

But it's not proof that Republicans should be concerned about the guy responsible having more power?

[Sarcastr0]

This is truly the number one reason people who are already at 100% should be at 100%.

This is not going to motivate anyone not already utterly in the fever swamps.

[Michael Ejercito]

One obvious cost is that pardoning would put Presidents at risk of prosecution for obstruction of justice.

If this law passes, Congeess would not need to criminalize or regulate pardons.

All it takes is a prosecutor creative enough to argue that pardons obstruct justice.

Pardons are an important safety valve and this law would lock the safety valve.

There are of course other ways in which ptosecutors could argue that the exercuse if other core powers, like vetoes, firings, or nominations, can be crimes.

[SRG2]

Here's the thing. As the dissent pointed out, we've had 250 years of experience of presidents and the lack of immunity has never been a problem. That applies to pardons as well as everything else. Removing this activist judge-made invention of immunity restores a status quo that was never a problem.

[Michael Ejercito]

In tge past 250 years, we did not have prosecutors use creative interpretations of criminal law.

[Brett Bellmore]

We've had 235 years of experience of Presidents enjoying de facto immunity of the sort the Court just made explicit because somebody finally decided to breach it.

[Sarcastr0]

Or because they didn't do what Trump did.

Trump is extraordinary in his flaunting of the law. You pretending otherwise does not change that fact.

[Brett Bellmore]

But, in fact, we know that they did do what Trump did. Former Presidents have routinely taken home documents from their time in the White house, for instance. VP's, too: Both Pence and Biden had classified documents in their possession that they had no legal right to. But they had a settled expectation of that law not being enforced against them.

Until the unprecedented effort to go after Trump upset that expectation, and they were forced to "find" the documents they'd known all along that they had.

[Sarcastr0]

No; we’ve been over this a lot.
Trump actively hid the docs over a long period of time and lied about it.

Sometimes your selective forgetfulness is pretty wild.

[Brett Bellmore]

Biden not only had his illegal classified documents for much longer than Trump did, he is known to have shared them with his biographer, who lacked the appropriate clearances to see them even if Biden had been in legal possession of them. That's a bigger offense against the law than just simple retention.

You're dinging Trump for things that Pence and Biden didn't have to worry about, because THEY had notice that the rules had changed, while Trump got in trouble because he had no such notice, he was still operating under the rules prior to the lawfare against him.

[OtisAH]

Several times every day of every week in every month for well over the past 20 years you pull this same exact nonsense.

You’re tedious and a bore; you’re dishonest and you suck.

[Brett Bellmore]

Biden illegally had classified documents, which he shared with somebody lacking a security clearance, and got off Scott free. This bothers you not at all.

Trump had classified documents, with an argument that he had them legally which hadn't yet been adjudicated, and kept them in a locked room. This utterly outrages you.

If you didn't have a double standard, you'd have no standards at all.

[SRG2]

And Trump also refused to return them, and then had his lawyer sign a letter stating that all documents had been returned when they hadn't, but for some reason - fundamental dishonesty, perhaps - you neglect to mention that.

[OtisAH]

I apologize if I left the impression I would play with you here. No. You’re tedious and a bore; you’re dishonest and you suck.

[Jason Cavanaugh]

Hey Brett,

Go read the indictment.

YOU ARE A FUCKING LIAR.

Fuck you and your entire family.

[David Nieporent]

But, in fact, we know that they did do what Trump did. Former Presidents have routinely taken home documents from their time in the White house, for instance.

Once again: Trump is not being prosecuted for doing what former presidents (or vice presidents) did. He's not being prosecuted for having them in his possession.

[Brett Bellmore]

And once again, nothing he's being prosecuted for would have ever become an issue, if he'd gotten the same treatment as other former Presidents or even VPs. Because the wouldn't have been so aggressive about demanding he turn the documents over in the first place! He'd have been able to peacefully negotiate with the National Archives what they were and weren't entitled to, on a normal, non-"have the FBI raid at the first excuse" schedule.

It's like saying, "He's not being prosecuted for speeding, he's being prosecuted for not pulling over to the side of the road fast enough!" and ignoring all the people who were driving just as fast, but had no worry about pulling over quick enough, because the cops ignored their speeding.

[David Nieporent]

And once again, nothing he’s being prosecuted for would have ever become an issue, if he’d gotten the same treatment as other former Presidents or even VPs. Because the wouldn’t have been so aggressive about demanding he turn the documents over in the first place!

What I love about you is your utter self-confidence in each and every one of your opinions despite the lack of anything even remotely resembling subject matter expertise.

He’d have been able to peacefully negotiate with the National Archives what they were and weren’t entitled to, on a normal, non-“have the FBI raid at the first excuse” schedule.

They fucking negotiated with him for fifteen months, Brett.

And the FBI search — not "raid" — did not take place "at the first excuse," but at the very last one: after Trump had submitted an affidavit falsely claiming he had turned over all documents with classification markings. That was not a dispute over ownership; ownership wasn't at issue. It was perjury. And then they found evidence that he had moved boxes around to hide them. And only then, several months later, did they decide to conduct the search.

[Jason Cavanaugh]

Forget subject matter expertise. Brett's primary problem is that he's a goddamn liar who doesn't get the basic facts correct, which is a step that comes long before the interpretation of law that he has no experience with.

Brett is the epitome of the kind of stupidity required in today's MAGA cult.

As to the Trump situation, you forgot to also mention (this time, at least) that Trump entered into a criminal conspiracy to obstruct justice by attempting to have his henchmen destroy the evidence of his perjury.

[Michael Ejercito]

If he was such an extraordinary flouter of the law, why would prosecutors need to rely on creative legal arguments?

As Glenn Thrush and Adam Goldman pointed out.

https://archive.md/3UMEz#selection-907.0-907.432

Department leaders believed that the best way to justify prosecuting Mr. Trump and the Willard plotters was to find financial links between them and the rioters — because they thought it would be more straightforward and less risky than a case based on untested election interference charges, according to people with knowledge of the situation. But that conventional approach, rooted in prosecutorial muscle memory, yielded little.
Emphasis added

That should have been the end of the matter.

Defense attorneys get to be creative in their arguments about the scope of a criminal statute.

Prosecutors do not.

[Brett Bellmore]

They needed creative arguments because, despite their conviction that he had to be guilty, they couldn't actually find any evidence that he was. And, yes, that should have been the end of the matter: No evidence, no case.

But in lawfare you don't let things like that stop you.

[Sarcastr0]

Your mindreading continues to be incredible. As is your evidence ignoring ability.

https://abc7ny.com/post/donald-trump-expressed-concern-returning-classified-docs-after/14998623/

[Z Crazy]

Didn't the documents case involve allegations of perjury?

[Michael Ejercito]

I would have to check.

Nevertheless, neither FJB nor Pence were allowed to take classified documents in the first place.

Why were they not prosecuted?

Hillary Clinton had a private server with classified information. And yet we were told no reasonable prosecutor would bring a case.

And my longtime Usenet ally, Christopher Charles Morton, wrote about Sandy Burglar.

https://groups.google.com/g/alt.politics.greens/c/7MN9WmJsJyI/m/ne4A1YIwTiEJ

I used to be a document custodian.

I think that piece of shit should do serious jail time.

I worked with SCI too. If I'd done any of those things, I'd still be
in jail.

Screw the Iraqis in Abu Ghraib. They need to torture Berger to find
out what really happened to those documents.

He probably SOLD them.

Maybe we should have made an example of Sandy Burglar.

But we did not, and here we are.

[Z Crazy]

Who's chrisptohe Charles Morton?

[Michael Ejercito]

Chris was a U.S. Army veteran and a patriotic American.

He always stood for what was right and true.

I first interacted with him on various Usenet newsgroups, back when I was a freshman in college.

He greatly influenced my own political views for twenty-five years!

Is that not awesome!

[Brett Bellmore]

"He probably SOLD them."

More likely he'd been tasked with destroying any old papers that had the potential to embarrass Clinton. Per Wikipedia, "The documents were five classified copies of a single report commissioned from Richard Clarke covering internal assessments of the Clinton Administration's handling of the unsuccessful 2000 millennium attack plots." Reportedly they had hand notations on them; Destroying them assures we'll never know what those notations said, as they had not yet been copied and archived.

[tylertusta]

The unstated premise here is that in the eyes of many Democrats, Trump wasn't actually a legitimate President.

Trump is afforded no consideration, no benefit of the doubt, and no mercy. Trump is guilty-until-proven-innocent and he's treated that way by leftists, their media lackeys, and their politicians-in-robes that they call Judges.

Trump has very few virtues in my eyes, but one of which is that he's done is show us all of those would would give up their first principles in favor of a rule by exigency.

The "Party of Norms" should look in the mirror to see the irony... but they're too busy pontificating new ways to attack their enemies by any means necessary.

[David Nieporent]

Nevertheless, neither FJB nor Pence were allowed to take classified documents in the first place.

Why do you think that?

Why were they not prosecuted?

Because nobody — including Donald Trump — gets prosecuted for that.

[David Nieporent]

More likely he’d been tasked with destroying any old papers that had the potential to embarrass Clinton.

Donald Trump riled up his crazed supporters for two months with known lies about the election being stolen. He then summoned them to Washington with the promise to be wild. He then ranted and raved about how the election was being stolen and the GOP needed to be strong and fight, and that Mike Pence didn't have the courage to do what must be done, and he sent those supporters to March to the Capitol. Those people themselves admitted that they understood Trump was telling them to assault Congress. But because Trump didn't (publicly) say, "MAGA, I want you to attack Congress and force them to declare me the next president," Brett insists that anyone who thinks he wanted it is literally crazy. (Brett has compared them to David Berkowitz.)

But despite exactly zero evidence, he thinks it "likely" that Sandy Berger was "tasked" with doing what he did.

[David Nieporent]

Trump is afforded no consideration, no benefit of the doubt, and no mercy. Trump is guilty-until-proven-innocent and he’s treated that way by leftists, their media lackeys, and their politicians-in-robes that they call Judges.

Trump used up his benefit of the doubt.

[tylertusta]

Trump used up his benefit of the doubt.

Not even a denial of the rest? Well, I'm now going to give you the Trump treatment.

You're never supposed to lose the presumption of innocence, shitstain.

David Nieporent, you are validating my opinion of you as a inexplicably awful excuse for a human being every time you write about Trump.

[Brett Bellmore]

He's talking about attempts to prosecute Trump for J-6, Sarcastr0, not for retaining government papers after leaving office like every other President ever.

[David Nieporent]

If he was such an extraordinary flouter of the law, why would prosecutors need to rely on creative legal arguments?

They didn't.

[tylertusta]

1512(c)(2).

[David Nieporent]

There's nothing "creative" about that as applied to Trump's actions. (There wasn't anything particularly creative about it as applied to the J6 insurrectionists' actions, either; it just represented a somewhat esoteric dispute of statutory interpretation. But Trump's actions are in the heartland of the statute.)

[tylertusta]

Don’t pee on my leg and tell me it’s raining.

They were charged under a provision that had never been applied in this context before under a section titled “Tampering with a witness, victim, or an informant” under a provision about evidence, yet the government argued that protesting qualified as obstruction.

This is the same level of creative stupidity as that one time that the DOJ tried to argue that fish were records for the purposes of SOX.

Fortunately, we’re now at a time after the Court has released it’s opinion, so now I get to say ‘The Supreme Court disagrees with you.’

Yes, they were creatively stretching the law, probably because some prosecutor in the DOJ saw that 1512(c)(2) gave them them the guideline range of prison time that they wanted.

[David Nieporent]

It's a relatively new statute and an unusual factual situation, so it's not surprising or revealing that it "had never been applied in this context before." This isn't like digging up a statute from the 1870s and applying it to, say, mail fraud even though there had been tens of thousands of mail fraud prosecutions in the last 150 years and nobody had ever before suggested that the statute applied.

As for the statutory construction, the government contended that attacking Congress (not "protesting") counted as "otherwise obstruct[ing], influenc[ing], or imped[ing]" an official proceeding. Which, as a matter of English, it does. But I think the pros and cons of the various interpretations were adequately addressed in the various opinions issued by the Court in Fischer and I don't really see the need to rehash them.

Yes, a majority of SCOTUS disagreed, but my point is that it didn't say, "WTF are you people thinking? That's an absurd attempt to stretch a statute that obviously doesn't apply." It was a highly technical parsing of statutory language to come to the conclusion that a different interpretation is better.

[David Nieporent]

But just to reiterate: even if it were a "creative" interpretation as applied to the J6 thugs, it's not a creative interpretation as applied to Trump, who is in fact accused of tampering with evidence, not just "protesting" [sic].

[tylertusta]

“otherwise obstruct[ing]

A fish is not a record. And “otherwise obstructing” evidence does not include rioting which causes Congress to halt business.

That’s an absurd attempt to stretch a statute that obviously doesn’t apply…

You should have listened to oral arguments, because that’s essentially what a majority of the Court told the SG. And then they backed it up with a majority opinion a couple of months later. This is maybe the 8th (9th?) case in a row where the Supreme Court has told the DOJ prosecutors to stop trying to stretch statutes to cover acts that Congress did not criminalize.

The indictment as Smith presented to the Grand Jury did not allege that Trump’s alternate electors constituted tampering with evidence. Trump indictment for 1512(c)(2) and (k) were *only* for the riot. The indictment includes the elector scheme for the fraud counts, not 1512(c)(2). Smith had no real choice on this.

We might even get to see this ourselves, too, since the original GJ witness testimony on 1512(c)(2) is now Brady material.

On the other hand, maybe Smith will beat Trump to the punch with a superseding indictment that fixes this deficiency.

[Cheshire]

Josh;

Isn’t this just performative legislation? If yes, why spend any time analyzing the merits. That’s what proponents of this tactic are intending.

If no, can you explain how this legislation might advance?

[Ghost of Patrick Henry]

It's really been Schumer who has taken our politics into the ridiculous place we are now. More than Obama even and Pelosi. He is the most damaging American political personage of my lifetime. A truly despicable human being.

[Kazinski]

Well, don't forget his mentor Harry Reid.

[Frank Drackman]

They don't call him Schmuck-y Schumer for nothing.

[Sarcastr0]

Haha, Schumer is the most boring, intuitionalist, electoralist politician in his generation.

He’s too pragmatic even for me. Only cares about winning elections. Lets other people sort out the policy.

You got any examples of this damage he’s done? Or influence he’s had on politics? Heck even when he turns his machine to Albany politics, it's not policy-based.

[JoeFromtheBronx]

He has for a long time granted that judicial nominations are not just based on objective qualifications above and beyond ideological concerns. Nice bit of honesty.

Schumer seems to have done his job -- herding cats and playing Trump when the Dems were in the minority -- fairly well the last few years. He also generally hasn't been an asshole.

I'll take him as one of my senators even if he's not one of my favs.

[Sarcastr0]

I grew up in NY. I'm not much of a fan. Too much electoralism, not enough policy plans.

I suppose we need those sorts, but I feel like his utter lack of vision prevents a lot of potential 3-point policy shots from being made.

[JoeFromtheBronx]

He has been the leader for a few years now.

We had some policies passed.

If Pelosi, Biden, or someone else led the effort, it’s okay. I don’t know how much he himself stopped anything.

He might have helped not enough to do regarding the courts but even there he probably had help from the likes of Durbin.

[Sarcastr0]

I mean, yeah, it's all a counterfactual and thus vibes. Reasonable people can differ on how much of a fan they are.

What I would want is a McConnell, but not evil. McConnel had no shortage of paying attention to elections, but he also knew when to let his people make a play, and wasn't above making some plays himself.
I continue to find it wild that the GOP now hates their or any party's most effective Congressional leader of this generation.

Courts is another arena, but I give him kind of a pass on that since until recently there was a passion differential between the parties on judicial nominees.

[Brett Bellmore]

Because too much of the time he's trying to effectively accomplish crap the party is opposed to. You can't separate "effective" from "at doing what" that way.

[Sarcastr0]

In reality, he's been very effective giving you everything you could ever want.

He's just willing to compromise to do it.

[Brett Bellmore]

Yes, you're really up on what Republicans really want. To the point that Republicans are just being performative if they disagree with you about it.

[Sarcastr0]

I'm up on the GOP platform, and what McConnel did to further it. Hell, judges alone should make you want to name buildings after him.

The GOP's rejection of McConnel is sincere; it is not performance.

It just shows how utterly stupid and crazy the GOP has become - own the libs over any actual policy push.

[Brett Bellmore]

Yes, most of the time he's pursuing actual GOP policies. Most of the time.

Sometimes he's applying his talents to advance the opposite of actual GOP policies. Which would have to be very rare to be forgivable. It's not rare enough.

But, crucially, he's also older than dirt, and keeps locking up, so he'd need to be replaced even if he was reliable.

[Sarcastr0]

You confuse actual GOP policies with your 'no compromise all Dems operate in bad faith' conspiracy-mind.

The GOP base does seem more in your camp. But that's not policy, that's hating the other side to a pathological point where policy is not as important as owning the libs.

'Pass no bills, might count as a win for Biden!' is stupid and crazy and where the GOP is today.

These things come in cycles, and when this populist idiocy ebbs, it'll be interesting where the GOP ends up as they try to reassemble some kind of coherent policy platform again.

[Brett Bellmore]

You're circularly defining "actual GOP policies" as "anything McConnell supports, even if his caucus revolts against it."

[Sarcastr0]

I have a broad but absolutely non-circular definition. If you want to have policies to put forth in contrast to McConnel, you need to have policies.

The GOP does not. All fall before owning the libs.

[Kazinski]

I've pointed out before that our constitutional structure ensures that a united Congress with determination will win any power struggle with the other branches of government.

Wake me up when they unite, and figure out what they are going to do. But one house with a one seat majority* they are soon likely to lose is just putting me back to sleep.

*That includes 4 independents ranging in loyalty : King, Sanders, Sinema, Manchin.

[Kazinski]

I might also add this is a Congress that has over the last decade or so that has fallen over itself handing power to the President. Rather than pass legislation, they applaud DACA, same with student loan relief. They won't pass budgets, only spending bills.

And I also wonder if when Chuck Schumer looks across the lawn at the Supreme Court building he thinks of his old buddy Harry Reid and the demise of the Judicial Filibuster (which by the way I am glad is gone, but it certainly did give the President more power).

[Brett Bellmore]

But they’re supposed to win those power struggles using their power to impeach and remove, which requires that Congress actually BE “united”, in the sense of a supermajority of the members being determined to prevail. Or overcoming a Presidential veto, which, again, requires a supermajority vote, not just a bare majority.

What’s dangerous about this is that it’s an attempt to bring the other two branches to heel on the basis of a temporary bare majority, not a sustained supermajority. It’s one more step in the trend towards treating a bare and transient majority as licensing doing the most extreme things.

[Stephen Lathrop]

Bellmore — Why do you suppose use of due process to remove a Supreme Court justice convicted of bad behavior is extreme? It should be regarded as routine application of discipline against an ordinary miscreant.

Even your alarm about momentous political upheaval is misplaced. The Supreme Court enjoys no legitimate power to act politically. To the extent that a disciplinary removal of a misbehaving justice does have political influence, that tends to demonstrate the corrective procedure was used rightly. To the extent that legitimate political influence may be built into resolution of some cases before the Court, there should be zero need to resort to bad behavior to decide a case with such unavoidable political influence.

Of course I understand what alarms you. You and many others have become accustomed to rely on a corrupt Court as a political ally. That does not make your argument better; it makes it worse.

[Stephen Lathrop]

Forget the Schumer bill. Do much less.

Pass a law to affirm grand jury power to indict criminally Supreme Court Justices' violations of an ethics code imposed by Congress. Define specific violations. Create in the bill a legal requirement that any such indictment shall be prosecuted by the Justice Department, without discretion to neglect prosecution. Provide for one level of appellate review, with jurisdiction limited to the DC circuit.

Define conviction under that law as proof of bad behavior, disqualifying a Justice from the Court. Limit punishments for convictions solely to disqualification for bad behavior. Strip the Supreme Court of jurisdiction to hear any case which challenges that law.

My guess is that with a law like that on the books, ethical conduct on the Court would be transformed. Public trust in the Court would be restored. And, most likely, no case under that law would ever have to be tried.

Probably, at least 6 justices on the Court would welcome the law. The folks who would hate the law most would be the dark money faction which has corrupted the Court.

[Noscitur a sociis]

In what possible sense is this (silly and unconstitutional) proposal “much less” than the bill at issue?

[Stephen Lathrop]

Noscitur — Start with the premise that the Constitution does not constrain the jointly sovereign American People. Without violating that premise, explain what about that proposal is unconstitutional.

I take it that you do not like the notion that grand juries act as tribunes of America's joint sovereignty, and thus grand juries are no part of government. Perhaps you think a grand jury is subject to control by the Supreme Court, or by the Justice Department. If so, you are mistaken as a matter of history, and as a matter of law.

But I will listen to what you might say. What is unconstitutional?

[David Nieporent]

You. Are. Delusional. Grand. Juries. Are. Part. Of. The. Government. Subject. To. Control. By. The. Supreme. Court. There. Is. No. Sovereign. People.

[Stephen Lathrop]

There. Is. No. Sovereign. People.

Nieporent — Are you daft, or merely typographically afflicted? Re-read the Constitution. To save time, you can stop after the first 3 words—the ones presented with the greatest graphical emphasis in the entire document. Do you suppose such extreme visual reinforcement was applied to encourage forgetfulness?

[Michael Ejercito]

So when that grand jury in Virginia indicted the Lovings for violating state antimiscegenation laws, the U.S. Supreme Court had no say?

[Stephen Lathrop]

Ejercito — I have only referred to federal grand juries. To the extent that federal rights are implicated, the U.S. Supreme Court may enjoy power to override a state grand jury under the Supremacy Clause. A lawyer could answer that question more reliably than I can.

Assuming nobody on the Supreme Court has sworn an oath to defend the Virginia Constitution, in which case it could be a Justice who had done so should recuse, I suppose, if the federal and state oaths require different decisions.

Oaths to defend the federal constitution implicate fealty and subordination to the joint popular sovereign of the United States, termed, “We the People,” in the U.S. Constitution.

[Don Nico]

"Constitution does not constrain the jointly sovereign American People"
NaS, just concede defeat. Lathrop has intoned the magical words.

[David Nieporent]

Create in the bill a legal requirement that any such indictment shall be prosecuted by the Justice Department, without discretion to neglect prosecution.

Oh, look, you said it again. So that gives me an opportunity to say again that you don't know what you're talking about.

[Stephen Lathrop]

Nieporent — Repeat yourself as often as you like. You establish no more than your commitment—surprising for an avowed libertarian—to constitutional supremacy for one branch of government.

No point in quoting to you again founding-era texts of impeccable relevance, and undoubted provenance, which show how peculiar in historical context is your commitment to a hypothetical American constitutionalism which not a single founder—Federalist, anti-Federalist, or otherwise—ever endorsed.

Your problem continues. You suppose mistakenly that American constitutionalism constrains the sovereign which decreed it. The people who actually created that decree disagreed, and said so in so many words—words which I have quoted to you. The most definitive text I quoted was authored by the man who chose the words, and whose hand wrote the text, that became the near-final draft of the Constitution.

You don't care. Your insouciant neglect of history, evidence, and context does nothing to show whether I do, or do not, know what I have been talking about. I thought perhaps you could make yourself competent to explore the question. On that theory I offered you sources to assist exploration. You ignored those too.

Some folks form ideological commitments so strong they blind insight into every experience, or any evidence, which embarrasses the ideology. You are one of those.

[Don Nico]

SL,
If you are correct, why do you complain about J6. Those rioters were just part of the jointly sovereign people representing their American brothers and sisters.

If that sounds silly it is because Nieporent is correct.

[OtisAH]

Like, I assume, every other poster here I’ve become increasingly concerned about the sudden rise of the anti-monarchy movement in America. There is simply no historical precedent for speaking out against kings in this country and I’ll be damned if I’ll sit back and let the camel’s foot in the pool. This is not Soviet China, it’s America. And in America we treasure our monarchy. Schumer and the rest of these anti-monarchists can get on board with the rest of us or go back to Puerto Rico where they belong.

[Mike45]

Does this bill also address Congress limited immunity while they are in session?

[JoeFromtheBronx]

As has been noted, this is a messaging bill [which is fine as far as it goes], which won’t go anywhere. The fact over ten Democrats didn’t even sign on to sponsor the thing might imply some realize if you took it seriously, the underlying approach might be a bad idea.

We can discuss what would happen if SCOTUS did something truly horrible & a party had full control of Congress. What sort of hardball it will play? But, when the full Democratic caucus is willing to truly go that far, well, it would be the first time.

Even now, a few Democrats will be wary, and talk about going carefully and waiting to see if the Trump prosecution could still go on. That is the honest accounting of things as Republicans, somewhat thinking of themselves, worry about Dems going amuck.

[Krayt]

No King Act? Finally!

Congress grows balls and gets up from their supine position and strips regulatory power, the power to speak words that people pay fines over or go to jail over, from the executive branch, and will dutifully vote on those words directly, approving them in accordance with democracy!

Wait, what? Not that? Just enabling more repeated, deliberate targeting of political opponents in endeavor after endeavor after endeavor?

[John F. Carr]

The Supreme Court is cut out of the process. Why stop there? Why allow appeals at all? Allow the prosecutor to shop for a sympathetic judge and demand a bench trial and the death penalty. From the courtroom straight to the gallows.

I was thinking about the song "The Night the Lights Went Out in Georgia" where an innocent man is tried and hanged before the real killer can be identified and presumably before any higher court can step in. I know it as a Reba McEntire song because I wasn't listening to country music when it was first a hit in 1973.

[Brett Bellmore]

Yes, if they enacted this, and got away with it, that would be the predictable next step.

I mean, it's not a secret that the Democrats have been thinking about ways to effectively end judicial review for some time now, but usually their preferred approach is just making sure it's done by people who won't uphold bits of the Constitution they find inconvenient. That approach at least leaves open the possibility that they actually think the Constitution permits what they're doing.

This represents an escalation to actually proposing to just outright abolish judicial review. Which effectively is a concession that they know they're violating the Constitution: This bill doesn't even permit a court they totally dominate to review its facial constitutionality, if they just wait a few months after enacting it before enforcing it.

Why wouldn't you let a court that you know is stacked your way have a crack at it, except that you know no honest court would uphold it even if they were ideologically in your corner?

[Michael Ejercito]

The death penalty would work much faster if all avenues of appellate review were abolished.

[MaddogEngineer]

I’m looking forward to the norms norms norms crowd to denounce this in 3,2,1…

Surely they will, because I remember the outrage when some anti-abortion groups suggested taking away SCOTUS appellate jurisdiction from abortion cases. A horrible assault on the rule of law, and all that.

Oh that’s right, I’m sure Robert’s decision is itself considered an assault on the rule of law (no kings! after all), so the left is allowed to do whatever it wants because of Trump. You remember the chief justice, the guy who saved Obamacare by declaring the mandate a tax.

Norms norms norms!

[Sarcastr0]

I see no commenters here supporting this bill.

[Brett Bellmore]

Well, no, because it's that bad.

All you have are people downplaying how awful it really is, and that as awful as it is, it still got 36 sponsors. 36 Senators went out of their way to put their names on this steaming heap.

[Sarcastr0]

Sounds like you and MaddogEngineer need to have a discussion about expectations.

[Brett Bellmore]

Sure.

" because I remember the outrage when some anti-abortion groups suggested taking away SCOTUS appellate jurisdiction from abortion cases."

Could I see the text of the bill McConnell introduced, with 36 sponsors, to do that? Oh, wait, didn't happen.

I suspect he's talking about this. Which was a state bill. With TWO sponsors. Died in committee.

[Sarcastr0]

He said he expects commenters will support this.

I said no one is supporting it around her

You said that just shows how bad it is.

So you and he disagree as to what level of support to expect.

Of course elsewhere here, you say Dems DO support this, they’re just hiding because they lie about their true agenda. Because you’re you, and you have an insane view of human nature. Or at least the nature of those you disagree with.

[Brett Bellmore]

Ordinary state legislator with one co-sponsor, vs member of the Senate leadership with 35 co-sponsors. (That's a solid majority of the Democratic caucus.)

You don't think that's a significant difference?

[kramartini]

I wonder what Biden’s position would be if he were to be indicted in the classified documents case. Clearly some of his actions with regard to those documents were officials acts and some were not. I’ll bet he would want to have evidence of his official acts excluded pre-trial.

[MDJD in NY]

This is just showboating.

A. It won't pass this Congress

B. If Harris is elected, the Democrats will drop the bill.

C. If Trump is elected and the Democrats pass the bill, Trump will veto it, and the Democrats won't have dnough votes to veto it.

D. If the bill passes, the Supreme Court will find it unconstitutional, and the fun begins. This is analogous to what happened in Israel, where the Supreme Court held that a bill limiting its powers was unconstitutional. The Gaza war postponed the constitutional crisis there.

[Roger S]

Yes, but it does show that the Democrats are authoritarians who want to avoid all public accountability.

[David Nieporent]

Eliminating an immunity is literally 100% the opposite of avoiding accountability.

[Gorbag]

I feel this is just evidence that Schumer is a "domestic enemy of the united states" and should be prosecuted as such. Anyone who has pledged to defend the constitution against all enemies foreign and domestic should then be considered to have violated their oath unless they support this, and not subject to any review by congress or the administration.

[Jason Cavanaugh]

In other words: You're an idiot who thinks proposing legislation should be criminalized to 'save' the Constitution, despite the fact that legislators have Speech & Debate immunity from prosecution explicitly granted by the Constitution you so badly want to 'save?'

Brilliant.

[kramartini]

Since a former President has a Constitutional right to immunity, any law which strips him of that right violates 5th Amendment due process.

[Jason Cavanaugh]

Good thing Presidents don't have a Constitutional right to immunity then, right?

You know, like the text of the impeachment clause makes abundantly clear?

[Darth Buckeye]

So what could happen?

Harris is elected president and the Dems gain control of the House.

Schumer has the Senate abolish the filibuster.

New laws passed by Congress and signed by President Harris that:
1. Increase the size of the Supreme Court by 4 or 6 seats.
2. Grant statehood to DC, Puerto Rico, and perhaps the USVI (all Dem strongholds),
3. S1/H1: "For the People Act" which would federalize elections and give structural advantages to the Dem party ballot harvesting
4. Pass Schumer's "No King Act,"
5. Pass a series of laws that regulate in granular detail how the President and the executive branch must carry out their duties.

This would give the Democratic Party permanent, structural control over the Federal government and would give them advantages so that they can start taking over state governments. They would do this knowing that the Republicans would NEVER be allowed to gain control of the Presidency, the House and the Senate ever again. Maybe a Republican would get elected president, but the Dems could keep that president under control; the president would just be a clerk carrying out Congressional orders. The new progressive Supreme Court majority would rubber stamp this control.

Long term, the entire US becomes a single-party state just like most of our major cities already are. Of course, real life will not be kind to this Regime.

[Sarcastr0]

Don't forget the Camps!

[Darth Buckeye]

No need for camps. They can put dissidents in virtual camps. Keep them unemployed. Deny them credit. Seize their bank accounts. Forfeit their pensions and social security. Keep them off of social media.

[Sarcastr0]

Don't be so speculatively apocalyptic. Might make you choose to do something you regret.

[Stephen Lathrop]

Buckeye, from time to time in American history formerly well-established political parties outlived their usefulness, and disappeared. That has not ever meant government became a one-party tyranny. Other parties sprang up from the wreckage, basing their politics on ideas better suited to command electoral success under changed political circumstances.

One way to look at what is happening today is to suppose that process of party replacement is playing out. But with MAGAs trying to intervene to prevent replacement of a failing Republican politics with something besides the MAGA's own inchoate opportunism. It is quite obviously the MAGAs, not the Democrats, who are destroying the Republican Party.

Time and again observers ask what besides defeat of the left do the MAGAS want? No answer is ever forthcoming.

The nation does not need a king to prevent Congressional tyranny. The nation needs viable, non-autocratic parties equipped to be electorally effective political rivals.

I think the MAGAs (not the Republicans, which have nearly vanished already), and the nation, are at a crossroads. Either we get autocratic tyranny from the MAGAs, or we get a new more-viable politics from contests between the Democratic Party, and responsible conservatives capable to organize a replacement for the Republicans.

It would not surprise me greatly if the Democratic Party shortly began a similar process of disintegration. It should have used this fraught political moment to find genuinely fresh leadership, from much younger politicians. It has not done so.

For all the talk of Harris representing generational change, she will likely prove too old—at age 60 on Inauguration Day if she gets that far—to effectively represent younger Americans. Thirty-four American presidents have been younger than that when they took office. Only twelve have been older. The younger American majority of voters will need much more than they are likely to get from the Harris/Jeffries/Schumer generation of Democrats.

[Don Nico]

“has not ever meant government became a one-party tyranny. ”
Now do California.

You are correct about Harris; she is a boomer – '45 to '65.

[SykesFive]

Puerto Rico would surely vote Republican.

[SykesFive]

If only Josh had remained speechless.