My first thought was to write about a shocking paragraph written by an old friend who at one time was a stalwart libertarian, and who (like the ACLU) continues to cruise on a legacy that’s largely dead.

The Supreme Court’s ruling in Trump v. United States is its worst decision of my lifetime. John Roberts’s sloppy, arrogant, contradictory majority opinion provides license for any future president to lie, cheat, steal, suppress dissent, and — if they have the stomach for it — assassinate. It obliterates a guardrail for executive power that’s fundamental to a functioning democracy. So fundamental, in fact, that until the country elected an aspiring autocrat brazen enough to engage in open-air corruption, it was a guardrail few thought necessary to actually define. Of course the president can be prosecuted for actual crimes.

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I couldn’t help but remember Chris Wallace interviewing Trump in July 2020, about his state of dementia.

“I’ll bet you couldn’t even answer the last five questions.” Now he has revealed the most difficult of these questions.

“The last questions are much more difficult,” he said. “Like a memory question. It’s, uh, like you’ll go, ‘Person, woman, man, camera, TV.’ So they say, ‘Could you repeat that?’ So I said, ‘Yeah.’ So it’s ‘person, woman, man, camera, TV.’ ‘Okay, that’s very good.’” Continue reading →

It’s summer in Tennessee. That means the weather goes from barely tolerable at 7 AM to “Satan’s Front Porch” by 10. When the air outside is so muggy it feels like you’re breathing in chicken soup, you really appreciate what makes this weather bearable: central air and iced tea.

Summer means the kids go from crazy busy schedules involving school to crazy busy schedules involving summer camps. My son has two field trips a week, for example. This means his special camp shirts need to be clean for those days. It also means he needs to actually locate those shirts as needed, which is apparently a Herculean task for a nine year old. Continue reading →

Let me preface this by making clear that nothing, but nothing, here suggests that Trump is a viable or better alternative to any person, living or dead. That said, the job of president doesn’t start at 10 am and end at 8 pm. The job of president isn’t done by committee. The job of president requires someone capable of being woken up at 2 am after a couple of international trips to be told of incoming ICBMs and make the decision of what to do about it. I don’t make the rules.

All of this raises the next question, which must first be decided before any argument about the nuts and bolts of how to accomplish it: If not Biden, then who? Apparently, the decision-makers have already made their decision without asking those of us who want two things, someone who can beat Trump and someone who can be trusted with the presidency. Continue reading →

It might seem as if we’ve hit the wall, two people running for president with the backing of the two major political parties whom the majority of Americans do not, and cannot, support. Does this spell the end of the American experiment? So many young people believe we’re doomed and see nothing ahead of us but misery. They criticize and condemn America at every turn. They find horrors no matter what we do or don’t do, as if the nation is so inherently corrupt and evil that there is no path that doesn’t lead to perdition. Continue reading →

In her dissent in Trump v. United States, there’s a strong possibility that Justice Sonia Sotomayor’s rhetoric didn’t make her new friends. But her statement on the denial of cert  in Price v. Montgomery County not only makes some excellent and valuable points, but could well be a precursor to a significant shift in the Court’s position. While the majority provided limited absolutely immunity for a president in the performance of core executive functions, is a prosecutor, of which there are a great many, similarly entitled to the same deference?

The case involved a Kentucky man named Nickie Miller, who spent two years in jail awaiting trial on a murder charge. Continue reading →

It’s unclear whether the reaction to the decision is the most inflamed ever, but it’s certainly close enough that it would not be hyperbolic to say the 5-1-3 decision in Trump v. United States has revealed a depth of outrage both in the Court’s minority dissenters and the anti-Trump public that is rarely seen. Stoking this outrage, Justice Sonia Sotomayor, with whom Justice Kagan and Jackson joined, “with fear for our democracy,” wrote:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Continue reading →

At Volokh Conspiracy, Eugene raises a point that has largely been ignored in the revelation about President Biden’s cognitive decline. What about the media?

Now let’s turn to the media. The media’s job should be to inform the public about what’s actually going on in the government. Certainly that should be so with regard to the cognitive abilities of the President.

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It was rather stunning that the New York Times put out an editorial calling on President Biden to withdraw from the race. It wasn’t at all anti-Biden, praising him for the accomplishments of his tenure, but concluded that the time has come for the good of party and country.

Mr. Biden has said that he is the candidate with the best chance of taking on this threat of tyranny and defeating it. His argument rests largely on the fact that he beat Mr. Trump in 2020. That is no longer a sufficient rationale for why Mr. Biden should be the Democratic nominee this year. Continue reading →

On the one hand, there’s little doubt that the running of such a diverse and complex society as ours requires a substantial bureaucracy to make it work. On the other hand, the administrative state today is not the administrative state it was 20 years ago, and certainly not what it was in 1984, when the Supreme Court created Chevron Deference.

Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various  preconditions we have set for Chevron to apply, a reviewing court must first assess “whether  Congress has directly spoken to the precise question at issue.” If, and only if, congressional intent is “clear,” that is the end of the inquiry. Ibid. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.”

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