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Nullification Now [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2024-07-02  

A hyena is not a good dog or a bad dog. It is not a dog at all.

In the same way, the recent opinion from the Gang of Six is not a “decision” or a “ruling” but a mere assembly of pages, without authority. It shares some superficial traits with authentic productions of the Supreme Court but does not meet the defining requirement: it is not about the Constitution, its text or history of interpretation.

Justice Sotomayor makes this quite clear (emphasis supplied).

The majority makes three moves that, in effect, com­pletely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute,under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence con­cerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical. Argument by argument, the majority invents immunity by brute force.

To date, this has been read as asserting that the arguments are wrong. But for Sotomayor here, they are much, much worse – they are nonsensical, not even recognizable; not products of reason, but of brute force; their conclusions are not deduced, but created and invented.

The majority opinion is not bad law: it is not law at all.

Sotomayor does not explicitly embrace that drastic conclusion, and perhaps even denies it by continuing to act within normal channels. But others must accept it, and quickly, if any kind of effective countermeasures are to be taken against the judicial coup of July 1. What this would mean is that those in positions of influence and power must reject the majority opinion as nonexistent and act accordingly. Now.

Nothing like this is going to happen, of course. Few will proactively risk chaos, even when it is about to engulf us. Hands will be wrung, brows wrinkled, and we will be admonished to trudge the futile pathways that have led us here. Almost certainly, the invented categories will be mooted, bruited, chewed over, and acted upon in courtrooms until they become the way things are – and, presumptively, always have been. Does this box have an outside?

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