Political Observer offers a small contribution !

stephenkmacksd.com/

Jul 26, 2025

Editor:

The final paragraphs of Ketanji Brown Jackson dissent, offer much more than the political chatter, of the would be Guardians of bourgeois political respectability, in the organs of political conformity, passing as arbiters of what is and and is not valuable, and respectable in the life in of that Long Dead Republic!

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TRUMP v. UNITED STATES JACKSON, J., dissenting

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All of this leads me to ponder why, exactly, has the majority concluded that an indeterminate “core”-versus-“official”-versus-“unofficial” line-drawing exercise is the better way to address potential criminal acts of a President? Could it be that the majority believes the obviously grave dangers of shifting from the individual accountability model to the Presidential accountability model might nevertheless be offset by the great benefits of doing so? Cf. J. Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation 3 (W. Harrison ed. 1948) (arguing that acts can be justified by the maxim that “it is the greatest happiness of the greatest number that is the measure of right and wrong” (emphasis deleted)).

Some of the majority’s analysis suggests as much. As far as I can tell, the majority is mostly concerned that, without immunity, Presidents might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13. The Court’s opinion candidly laments that application of the law to Presidents might not be evenhanded, and that, as a result, Presidents might be less “‘vigorous’ and ‘energetic’” as executive officers. Ante, at 10; accord, ante, at 39. But that concern ignores (or rejects) the foundational principles upon which the traditional individual accountability paradigm is based. Worse still, promoting more vigor from Presidents in exercising their official duties—and, presumably, less deliberation— invites breathtaking risks in terms of harm to the American people that, in my view, far outweigh the benefits.

This is not to say that the majority is wrong when it perceives that it can be cumbersome for a President to have to follow the law while carrying out his duty to enforce it. It is certainly true that “[a] scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.” Youngstown, 343 U. S., at 613 (Frankfurter, J., concurring). But any American who has studied history knows that “our government was designed to have such restrictions.” Ibid. (emphasis added). Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.” Myers v. United States, 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting).

Having now cast the shadow of doubt over when—if ever—a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act “manifestly or palpably beyond [their] authority,” ante, at 17, they will be presumed above prosecution and punishment alike.

But the majority also tells us not to worry, because “[l]ike everyone else, the President is subject to prosecution in his unofficial capacity.” Ante, at 40 (emphasis added). This attempted reassurance is cold comfort, even setting aside the fact that the Court has neglected to lay out a standard that reliably distinguishes between a President’s official and unofficial conduct. Why? Because there is still manifest inequity: Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or professional. The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire. So, the fact that, “unlike anyone else, the President is” vested with “sweeping powers and duties,” ibid., actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes those very powers.

The vision John Adams enshrined in the Massachusetts Declaration of Rights—“‘a government of laws and not of men’”—speaks directly to this concept. Mine Workers, 330 U. S., at 307 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Rule of Law; it reflected both a flat “rejection in positive terms of rule by fiat” and a solemn promise that “[e]very act of government may be challenged by an appeal to law.” Id., at 308. Thanks to the majority, that vision and promise are likely to be fleeting in the future. From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.

VI

To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Id., at 312. Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead, 277 U. S., at 485 (Brandeis, J., dissenting). I worry that, after today’s ruling, our Nation will reap what this Court has sown.

Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.” Cohens v. Virginia, 6 Wheat. 264, 389 (1821).

For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries.

In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.

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The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong.

But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

Political Observer.