Biden and Schumer, Defying Supreme Court, Launch All-Out Effort To Block Immunity for ‘King’ Trump

The majority leader of the Senate and the president of the United States both set themselves against the high court.

AP/Alex Brandon
Senator Schumer speaks with reporters on Capitol Hill, May 16, 2023. AP/Alex Brandon

The “No Kings Act” that Senator Schumer introduced Thursday will bring into focus the emerging all-out Democratic resistance to the Supreme Court’s immunity decision in Trump v. United States.

The ostensibly anti-monarchical legislation has garnered more than two-dozen Democratic co-sponsors. Mr. Schumer, in a statement, declares that “given the dangerous and consequential implications of the court’s ruling, legislation would be the fastest and most efficient method to correcting” the Supreme Court.

The Nine, in a 6-to-3 decision, ruled that presidents are entitled to immunity for their official acts, but not for unofficial ones. Most official acts are only presumptively immune, a bar that, say, Special Counsel Jack Smith could clear with a strong enough case. Acts that are in the “exclusive and preclusive” purview of the president, though, enjoy absolute immunity.

Mr. Schumer, long a foe of the Roberts Court, adds that “Congress has an obligation – and a constitutional authority – to act as a check and balance to the judicial branch.” The court’s ruling, though, is constitutional bedrock, meaning that any laws that Mr. Schumer and his allies manage to pass can be challenged as unconstitutional, and will have to stand up to Supreme Court scrutiny. Trump is no mere statute — it is now constitutional law.     

The lawmaker’s proposal comes on the heels of President Biden’s call for a constitutional amendment to curtail presidential immunity. The president explains that “this nation was founded on the principle there are no kings in America, each of us is equal before the law.”

The lawmaker’s language is stronger. Mr. Schumer’s statement also alleges, “The MAGA Supreme Court has once again subverted the will of the American people, and the very idea of democracy itself. The Founders were explicit – no man in America shall be a king. Yet, in their disastrous decision, the Supreme Court threw out centuries of precedent and anointed Trump and subsequent presidents as kings above the law.”

Messrs. Biden and Schumer appear to be borrowing language from Justice Sonia Sotomayor, who in her dissent writes, “In every use of official power, the president is now a king above the law.” The justice, in turn, echoes the district court judge, Tanya Chutkan, who observed that Trump’s “service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” 

The United States Court of Appeals for the District of Columbia Circuit agreed with her, unanimously, and quoted Alexander Hamilton writing in 69 Federalist that “the President must be unlike the ‘king of Great Britain,’ who was ‘sacred and inviolable.’” Hamilton, a partisan of a strong federal government, was himself accused by Jefferson of being “not only a monarchist but for a monarchy bottomed on corruption.” 

Justice Clarence Thomas, writing in a separate concurrence, also referenced royalty. He expressed skepticism over whether Mr. Smith’s appointment without Senate confirmation was constitutional or governing statute. The court’s senior justice recalled that fashioning positions out of whole cloth was a practice of the Crown, as the “King could wield significant power by both creating and filling offices as he saw fit.” Two weeks later, Judge Aileen Cannon disqualified Mr. Smith and dismissed his charges.

Axios reports that Mr. Schumer’s bill would strip the Supreme Court of some of its jurisdiction over appeals that challenge the constitutionality of the No Kings Act. The Constitution vests the power to set the high court’s jurisdiction in all cases except those “affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” Those amount to its original jurisdiction. Everything else is comprised in its “appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

The proposed legislation would also allow criminal charges to be brought against the president and vice president in any district in America. The ability of Mr. Smith to charge Trump in two jurisdictions — the District of Columbia and south Florida — was part of what Judge Cannon found so troubling. She writes that Mr. Smith’s “powers are arguably broader than a traditional United States attorney, as he is permitted to exercise his investigatory powers across multiple districts within the same investigation.”

While the No Kings Act appears — for the moment — unlikely to complete the journey to law from bill, its prospects could brighten after November’s election. Vice President Harris has signaled her support for Mr. Biden’s proposed reforms of the Supreme Court. They include not only the introduction of an amendment with respect to immunity, but also the first term limits for justices and an enforceable ethics code. 

Democrats’ discontent over the immunity ruling mirrors their displeasure with Dobbs v. Jackson Women’s Health Organization, which held that there is no constitutional right to an abortion. Ms. Harris promises to restore abortion rights if she’s president. In a speech on the 50th anniversary of Roe v. Wade, she accused the court of stripping a “constitutional right — a fundamental right, a basic freedom — from the people of America.”


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