Chuck Schumer Plays Constitutional Chicken

It seems to us shortsighted for Senator Schumer, seeking to strip constitutional immunity from the presidency, to fail to make an exception for Democrats. What is the logic of withholding immunity from, say, President Obama or, maybe, President Harris? We can understand Mr. Schumer wanting to deny immunity to President Trump. From listening to Mr. Schumer, though, one would think there would never be a Democratic president again. The Nine know that’s hogwash. Chief Justice Roberts’s majority opinion in Trump v. United States states that immunity applies “equally to all occupants of the Oval Office.” During oral arguments, it was Justice Neil Gorsuch who reminded that the court is tasked with writing not a rule for Trump but a “rule for the ages.” The Chief writes that the “Court cannot afford to fixate exclusively, or even primarily, on present exigencies.”The “No Kings Act” introduced by Mr. Schumer aims 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.” That “clarification,” though, is a direct affront to the holding of Trump, which is that a president’s official acts are presumptively immune, and that some of his or her core duties enjoy “absolute” immunity.If Trump created a monarchy, it is hardly one worthy of the purple. Prosecutors can overcome the presumption of immunity if they can show that a president exceeded the bounds of his office. Unofficial acts lack immunity, and are fair game for an enterprising United States attorney, or special counsel. The proof is in the pudding — on Friday the high court remanded Trump to determine the 45th president’s immunity. He could yet be convicted. The No Kings Act would mandate that the high court “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.” That, as the legal sage Joshua Blackman notes, means that the liberal lions of the D.C. Circuit would enjoy final say.Mr. Schumer’s law is jealous of its own prerogatives. Facial challenges — meaning constitutional ones — can only be brought until “180 days after the date of enactment of this Act.” Presuming that it would become viable only under a Harris presidency, such a window could slam shut with nary a peep. As applied challenges — those brought based on particular facts — “may only be brought not later than 90 days after the date of such enforcement.”All of this is so radical as to make President Biden’s proposed reforms to the court appear like fairy dust. It was Mr. Schumer who accused Justices Gorsuch and Brett Kavanaugh of having “released the whirlwind,” but here the majority leader — and 34 of his fellow Democrats —have unleashed a typhoon on the fondness of the Framers for separated powers. In seeking to prevent a “king above the law,” they make a despot of Congress. What strikes us is how shortsighted is the Democrats’ war on the court. Today’s liberal minority is tomorrow’s majority. The rising fortunes of Ms. Harris, and by extension, Democratic candidates for the House and Senate, means the court is in more imminent danger than it might appear. The vice president has already endorsed Mr. Biden’s plans, and she will likely back Mr. Schumer’s as well. The game of constitutional chicken is joined.

Chuck Schumer Plays Constitutional Chicken

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