EDIT: since you edited your post after I responded, I'll try to respond to your edit. It is Biden who believes he's above the law. He has consistently bragged about it, for example, in flouting decisions saying he has no authority to forgive student loans. It is Biden who is not following the law here. I'm sure this will be appealed, and maybe in a few years, if we're lucky, the law will be made clearer.
> Biden who believes he's above the law. He has consistently bragged about it, for example, in flouting decisions saying he has no authority to forgive student loans.
Cool, then ding him. Presidential authority is absolutely uncomfortably vague. But this expands it; Cannon is saying, in essence, a prosecutor who the President can order around should be bringing this case.
Right now, Biden is above the law. He could declare martial law in D.C., field promote his son and then—as commander in chief—order him to execute the conservative members of the Supreme Court, pardon his son, pardon himself, resign and—under current law—be absolutely immune. Under current law, the President is more powerful than Rome’s consuls ever were [1].
> Right now, Biden is above the law. He could declare martial law in D.C., field promote his son and then—as commander in chief—order him to execute the conservative members of the Supreme Court, pardon his son, pardon himself, resign and—under current law—be absolutely immune.
Not as I understand the Supreme Court decision. Ordering the execution of 6 members of the Supreme Court is not within the scope of his office. You'd have to prove it - there's a presumption that his actions are within scope - but it's not absolute. (For stuff that is within the scope of the powers of his office, there is absolute immunity.)
> Ordering the execution of 6 members of the Supreme Court is not within the scope of his office
Commander in Chief is a core Constitutional duty, and one of the most-expansively interpreted ones at that.
Of course, if someone did that the rules wouldn’t matter. And they wouldn’t follow up by resigning. But it’s illustrative of how silly the framework is.
> Ordering the killing of Supreme Court justices is not part of the powers of the Commander in Chief
We’ve extrajudicially liquidated Americans overseas before. Why isn’t this a power of the Commander in Chief?
What if they aren’t SCOTUS, but federal judges suspected of a terrorist plot? State judge? Where do we draw the line? (We’ve executed Americans extrajudicially and under Article I powers.)
> that people are acting like it could be
Nobody is. I’m not arguing that absurdity is a likelihood that can be defended against with laws. My point is there is no good source for what constitutes an official act.
EDIT: You are arguing in good faith and shouldn’t be getting downvoted.
Was this an official act? The President of the United States ordered the military to kill an American citizen who had not been convicted of a crime, with the "due process" being a DOJ memo.
What would make a hit on SCOTUS any different? Both involve the President ordering the armed forces in his official capacity as Commander in Chief to kill an American citizen without trial.
The only difference would be motive, and the Trump v. United States opinion explicitly states courts cannot consider it!
What would make a SCOTUS hit any different? Whether it's within the US or not (and whether it's somewhere that will extradite them or not). The ability to arrest them rather than hit them.
Show me one instance of the president ordering a hit on a citizen within the US borders. For that matter, show me one instance of the president ordering it within a country that would extradite to the US.
OK, so he can drone strike SCOTUS if they go on vacation overseas?
> The ability to arrest them rather than hit them.
Well, it's pretty clear he can't arrest them. That wouldn't be an official act like issuing an order to the military would be.
> Show me one instance of the president ordering a hit on a citizen within the US borders.
The ruling granting absolute immunity without consideration to motives is brand new and the first and only person so far to be subject to it is a decent human being. The system needs to protect us against more than just the well-intended.
He can't arrest them himself, no. He can't order their arrest. The point is that the normal judicial process can work on them. So can impeachment. Neither was available for Awlaki.
So, back to the main point: The ruling did not grant absolute immunity for acts outside the scope of his office. (Really! Read it! Take what it says about itself, not Sotomayor's hyperventilating dissent[1]. The ruling says the scope of what it does and does not cover.)
And, second point: Ordering the execution of 6 sitting Supreme Court justices is not within the scope of the president's office. For all you keep raising Awlaki, it's not at all the same - not unless 1) a bunch of SC judges became Al-Qaeda organizers, and 2) the Justice Department, the FBI, the Marshalls Service, and the local police were completely unable to arrest them.
[1] "Hyperventilating" because it had lots of rhetoric but very little actual legal analysis.
> The ruling did not grant absolute immunity for acts outside the scope of his office.
Commanding the armed forces is very much in his scope. Remember, the same decision said motives couldn't be considered in determining official vs. non-official act; the difference between "Trump is a national security threat the judicial system clearly can't handle" and "al-Awlaki is a national security threat the judicial system clearly can't handle" is the President's motive behind the strike.
> it's not at all the same - not unless 1) a bunch of SC judges became Al-Qaeda organizers...
Can you clarify where in the Constitution it says it's OK to assassinate some Americans without a trial but not others?
> The point is that the normal judicial process can work on them.
I mean, maybe? Not long after news broke of Thomas accepting $4M+ in gifts, Snyder vs. United States said gratuities after an act don't count as bribes.
> Commanding the armed forces is very much in his scope.
Commanding the armed forces against other branches of the United States government is very much not in the scope of his office.
"Commanding the armed forces" is not the unlimited blank check that you seem to think it is. Since Vietnam, it's drilled into the heads of the military not to accept an illegal order. Inherent in that is the idea that some orders are illegal. They are not legitimate things to ask the military to do. Well, if they're not legitimate to ask, then they can't be within the scope of the commander-in-chief's legitimate authority. And I'm pretty sure that killing Supreme Court justices would be on the "not legitimate" side of the line.
> Commanding the armed forces against other branches of the United States government is very much not in the scope of his office.
Why not? Where is this restriction laid out in the Constitution? The Presidential Oath of Office even says he'll defend the Constitution "against all enemies, foreign and domestic". As we've discussed, precedent for "enemy" seems to be "DOJ writes themselves a permission slip".
Absurd setup? Yes. That's precisely why folks are incensed about this ruling.
> Commanding the armed forces against other branches of the United States government is very much not in the scope of his office
We fought and won a civil war. Lincoln was well within his rights the whole time. Based on that, firing upon leaders of traitorous states is precedented.
> it's drilled into the heads of the military not to accept an illegal order
Absolute immunity toys with that restraint. The President, if absolutely immune, is tactically sovereign. Add to that pardon power and this blurs the line between what constitutes a legal, executable order and one that does not. (We’re no saints when it comes to international law, incorporated or not.)
We’re not in a scary place. The levers of tyranny have always been there. We’re in a stupid place. That makes more likely not calculated coup but idiotic dishevelment.
Nobody is suggesting this is realistic. If you’re going to do what I described, you go all the way and hold the Congress at gunpoint. (That’s been a risk we’ve trusted in the Presidency since at least the New Deal, and nobody in power seems unhappy about it.) What we’re asking is whether it would be legal.
Arguing ad absurdum has a long tradition in law. Usually it’s constrained to academia by the “cases and controversies” clause, but SCOTUS is no longer narrowly deciding cases. (“Decision for the ages” and the Warren court.) It’s used to uncover internal inconsistency.
That is not what is going on here.
An attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ. It hasn't been authorized by any law.