What is the President allowed to do, and what is punishable?

The current Supreme Court is a politically motivated gang more interested in advancing a royal agenda than examining the obvious results of that agenda.

The right-wing members of the court, also known as the Republican members, hold a solid 6-3 majority. They have voted to grant the currently Republican President powers akin to those of a king.

I will refrain from speculating on whether they would have taken the same action for a Democratic President, but I can say with certainty that this decision is entirely rooted in Republican politics, particularly the MAGA movement.

SCOTUS has adopted what is known as the “Unitary Executive Theory,” which holds that the President must have complete control over the entire executive branch.

This means, all executive power is vested in one person: the President. All executive officers (Attorney General, DOJ, FBI, CIA, cabinet secretaries, agencies) are entirely subordinate to him.

No part of the executive branch can operate independently of Presidential direction. The doctrine is based on an interpretation of Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.”

It is doubtful that the original founders, having experienced and hated being ruled by a king, would intentionally have created a Constitution that gave someone kinglike powers. Nevertheless, that is the assumption of the six right-wing justices.

The reason (excuse) for this SCOTUS ruling was “The ordinary checks of the criminal or civil law cannot apply to the president while in office, because lawsuits and prosecutions would unacceptably distract him from his constitutional responsibilities.”

All forty-six previous Presidents, including Trump himself, managed to avoid being unduly distracted by lawsuits and prosecutions. Perhaps it took a notably criminal President to bring this possibility to light.

It started with Antonin Scalia, who stated that all executive power is vested in the President, independent prosecutors are unconstitutional, and fragmented executive authority undermines accountability. This perspective is rare, considering our historical relationship with the British crown.

By the mid-2000s, Scalia was joined by Thomas and Alito in supporting the notion that America should be ruled by a king.

In 2008, Chief Justice John Roberts joined the group, and shortly thereafter, Kavanaugh, Gorsuch and Barrett rounded out the six king-makers.

Their recent presidential immunity decision (Trump v. United States) implicitly states that the President is immune from any prosecution for “an official act”:

1. The President can fire any executive-branch official at will.
2. Can order the DOJ, the FBI, U.S. Marshals, and all other federal law enforcement to arrest anyone, even a member of Congress (or SCOTUS), who does not vote in agreement with the President’s decisions.
3. The President can order a federal judge to find someone guilty and sentence them to jail.
4. No independence for agency heads, prosecutors, or regulators.
5. The President can direct the DOJ, FBI, and federal prosecutors however he wants.
6. Congress cannot limit the president’s control over executive agencies.
7. Previously independent agencies (FTC, Fed, NLRB, FCC, etc.) lose their independence.
8. The President can direct or stop any prosecution.
9. The President controls all enforcement.

Even if the order is illegal, corrupt, or tyrannical, it is still an official use of executive-branch authority. He can violate the Constitution and still be immune from criminal prosecution if the act is an official one.

The Court explicitly said the judiciary may not examine the motives behind official acts, so even if the arrest order was retaliatory, abusive, election interference, or blatantly fascist, the king (sorry, the President) can do it without fear of criminal consequences.

The agents who carry out the arrests could potentially be prosecuted, but the president himself would be shielded. Of course, the king could pardon those agents, as Trump already has demonstrated with his pardons of the January 6th traitors.who tried to overthrow the government.

Ordering the arrest of legislators or judges for political reasons is an “official act” using core executive-branch authority. The president would have absolute criminal immunity.

He could not be prosecuted, even though the order is tyrannical, anti-constitutional, more characteristic of authoritarian regimes, and a direct attack on the separation of powers. This is exactly the kind of abuse critics warned about, and the majority opinion did nothing to carve it out.

Consider what King Donald could do:

I. He could try to dissolve Congress, arrest members, block access, or prevent it from meeting; he would be criminally immune. Under the Court’s logic, directing federal law enforcement is a core executive power. His motive cannot be examined, and his criminal prosecution for his official acts is barred.

The only solution would be for Congress to impeach him, provided they can convene and that Republicans would support it. Alternatively, the courts could issue injunctions, assuming he would comply with them. The military could also refuse his unlawful orders, assuming he hasn’t already dismissed those with integrity.

But no criminal prosecution for him.

II. He could ignore or order the states to ignore SCOTUS rulings. Although the President has no authority over state governments (yet), he could federal executive power to pressure, coerce, or assist states in disobedience.

III. He could jail journalists who criticize him or his administration in any way. Though this would violate the First Amendment (due process and press freedom) he still could order the arrest of journalists. His motives cannot be questioned, and criminal prosecution of the president would be barred.

The Court explicitly said even abusive or “nefarious” uses of official power are immune.

IV. The president has the authority to use military force domestically by following established legal processes, such as the Insurrection Act. However, he could also deploy the military without statutory authorization, which would be considered an abuse of power. This action would violate the Posse Comitatus Act and the Constitution. Moreover, the president’s decision in this regard would be immune from criminal prosecution.

Military officers are legally obligated to refuse illegal orders and soldiers can be court-martialed for following unlawful commands. (You’ll notice the recent right-wing “hang ’em” response to someone even mentioning that legal possibility.)

Though the Constitution still forbids authoritarian actions, the criminal law can no longer restrain a president who commits them using executive power.

The only remaining checks are: impeachment, elections, military refusal, civil suits, injunctions, or political resistance.

The problem is time. An amoral monster like Trump can do so many otherwise prohibited things, and even in the unlikely even that a spineless Republican Party, or a criminal SCOTUS voted against him, these things take time, and time itself can be punishment.

ICE mis‑detained a U.S. citizen, who was imprisoned for 1,273 days got a damages award — but the appeals court later denied compensation because the claim was filed too late. Federal lawsuits against ICE or DHS are often difficult; there are narrow pathways, and courts have sometimes dismissed claims even when civil rights violations seem obvious.

Even after proving citizenship, many detainees remain jailed for days or weeks before release. That delay, trauma, lost wages, and reputational damage may not be fully compensated or acknowledged.

Many suits end in dismissals or settlements that fall far short of real justice (and no criminal liability for the officers/agency). 

In short, any given power tends to use that power. An amoral person given kinglike power absolutely will use that power amorally.

The founders tried to anticipate a tyrant, but clearly failed to anticipate a psychopath like Donald Trump with the support of the spineless and suicidal Republican Party.

Only one question remains: Is America lethargic enough, or bigoted enough, or just plain stupid enough to vote for the slavery that the current Supreme Court has countenanced?

Then we get what we vote for.

Rodger Malcolm Mitchell

Monetary Sovereignty

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