Presidential immunity & power

By TIERNEY’S REAL NEWS    29 April 2024

Justice Kavanaugh wrote this opinion about separation of powers, Presidential immunity and Presidential power in the Minnesota Law Review in 2009 – long before he was a SCOTUS Justice. IMHO, it is important to read it again in 2024, 15 years later.

It helped me understand the mindset of Kavanaugh for the current debate pending before SCOTUS about the war for control of America between elected officials and the Deep State – that is being put to the test at SCOTUS. This shows the thinking of one pivotal conservative member of SCOTUS who clerked for Justice Kennedy and also worked closely with President Bush. Kavanaugh was nominated by President Trump for SCOTUS, was wrongly accused of sexual abuse by the Deep State – and was then vigorously defended by President Trump and cleared.

Here are some relevant excerpts:

KAVANAUGH 2009: “The job of President is far more difficult than any other civilian position in government. It frankly makes being a member of Congress or the judiciary look rather easy by comparison. The decisions a President must make are hard and often life-or death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible.

I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.

In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics.

The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

If the President does something dastardly, the impeachment process is available.

No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is.

To be sure, in the power struggle that is Washington, Congress sometimes seems to prefer an enfeebled executive. [He must have been talking about the future Biden!]

Many Federal agencies operate their own fiefdoms these days with Iittle regard to what the President might have thought was the right approach. [He’s talking about the Deep State doing whatever they want in defiance of the President!]

Perhaps the most interesting illustration of this problem occurred when Senator and then-presidential-candidate John McCain called for the firing of the SEC Chairman. Some immediately responded that the President has no power to fire the SEC Chairman, prompting Senator McCain to quickly back down from his proposal.

But was Senator McCain’s suggestion so unthinkable? Let us assume for a minute that the chair of an independent agency has exercised his or her rulemaking or enforcement authority in a way that is ethically and legally permissible but simply turns out to be unwise and causes great harm. Should that official be subject to removal?

What if the agency head is mediocre or just average at his or her job? Normally, persons exercising tremendous executive power and responsibility are not insulated from direction, supervision, and ultimately (if necessary) dismissal, either by elected officials or by the people themselves. Why shouldn’t someone have the authority to fire such persons at will?

[Remember that President Trump wanted to fire Jerome Powell of the Federal Reserve and was told he couldn’t! He was also told he couldn’t fire Comey either – who was head of the FBI back then – but he did so anyway!]

And if anyone is to possess that power, it must be the President. Why is it that the President should not have the power, in the first place, to direct and supervise that independent agency head in the exercise of his or her authority?

When presidential candidates criss-cross the country for two years, engage in endless town halls, speeches, and debates, the people expect that the leader they elect will actually have the authority to execute the laws, as prescribed by the Constitution.

Yet that is not the way the system works now for large swaths of American economic and domestic policy, including energy regulation, labor law, telecommunications, securities regulation, and other major sectors where the President has little direct role in rulemaking and enforcement actions, despite those functions being part of the executive power vested in the President by the Constitution.”

[In other words, the Deep State and Federal Agencies have stripped Constitutional power from the President for themselves – and IMHO we need to take it back for Trump’s next term – that is the purpose of Agenda 47, Project 2025 and Schedule F. If you haven’t read this lately – you might want to read it again!]

KAVANAUGH: “In short, the President is vested with the executive power and yet actually exercises a relatively small slice of that power in certain critical areas of domestic policy.

To be sure, in some situations it may be worthwhile to insulate particular agencies from direct presidential oversight or control—the Federal Reserve Board may be one example, due to its power to directly affect the short-term functioning of the U.S. economy by setting interest rates and adjusting the money supply.

It is possible to make a similar case, on similar grounds, for exempting other agencies from direct presidential control, and it also makes sense generally to treat administrative adjudications differently from policy decisions, rulemakings, and enforcement actions. Yet independent agencies arguably should be more the exception, as they are in considerable tension with our nation’s longstanding belief in accountability and the Framers’ understanding that one person would be responsible for the executive power.

At a minimum, the implication of affording independence to such agencies should be carefully re-examined…”

You’ll hear lots of opinions about how SCOTUS will rule on Presidential immunity – but I think it’s important to understand how they think and where they came from. I would love to hear from you about how YOU think SCOTUS will rule…and why…reply to this newsletter or send me an email at peggy16280@gmail.com. Thanks!

PS: Somebody sent me this after I sent out the newsletter. Worth adding!

Reversal Now

By: Midnight Rider

Instead of sacrificing humanity on a cross of gold, as William Jennings Bryn urged we not do, we have sacrificed our country on two crosses: The first is the cross of the political elite; The second, the cross of poorly delegated power.

We have devolved into a nation “ruled” by a crass, entrenched, swamp of the political elite. The political elite have become today’s pimps and we the citizens are their whores.

The political elite class set up rules for everyone else and different ones for themselves.

It was never supposed to be that way. On the taxpayers’ dimes they travel the world in luxury and opulence but, unlike the upper management of successful enterprises they are emulating, they produce nothing of value.

They create expenses, grow those budgets, and keep creating them on the backs of taxpayers while only enriching themselves and seeking more, wider, and greater powers. For these rapacious beasts there is no Constitution, there are no G-D given rights, there are no rules that can’t be broken if bending does not work.

And the lamestream media? All they do is repeat the talking points of the political elite – predominantly ones of the DNC – ad infinitum.

So all we get is a steady diet of lies fed to us daily, even hourly, repeated over and over and over again in the hope that this practice will cause the lies to be believed….and it works.

Our current government has a self-serving, self-enriching clown at its head who has surrounded himself with clown henchmen and the entire cabal is as completely worthless and morally bankrupt as the head clown has been forever.

Until there is complete refutation, rejection, and dismantling of this elite political class we will continue to slide down the slope of ruin. We are Rome now and the barbarians are in our smart TV’s and smart phones. We need to shut the circus down and shoot all the clowns out of canons.

Then comes the shell game hoax of government – government agencies. Through the use of agencies our elected officials seek to hand off portions of their province to appointed minions so they can maintain plausible deniability for that which is always going wrong. These agencies have become little fiefdoms of their own run by politically appointed ideologues who could care less about their expected function and only focus on their petty bureaucracies and their made-up make believe rules and regulations that are never adequately supervised by the legislators who created those monsters.

The legislators have totally abandoned their oversight responsibilities and these agencies are now running amok and ruining the lives of the people who are footing the bill – the average American taxpayer.

All government operates on a one size fits all platform. Once a law is passed it affects everyone – thereby inevitably creating disparate results, the “unanticipated consequences”. Similarly, the agencies that then promulgate the rules and regs for these laws create them on a one size fits all platform – regardless of consequences.

What we learn in business is: ONE SIZE FITS ONE!

If under current laws we can’t clean house of ALL the dead and diseased wood inside those agencies we must abolish them. There are really very few agencies we need at the Federal level. And every year they get bigger and bigger and are allocated more and more taxpayer dollars, and continue to produce nothing of value. How dare these agency petty tyrants hand out bonuses, throw lavish parties, and otherwise assume the perks of private industry when, unlike private industry, they produce no value and only cost tax dollars? They are all COST CENTERS not profit centers. And when they oppress the citizenry, it is very few that can afford the current cost of litigation with them.

So, although oppressed by government we have learned never to “dance with the grizzly bear” because you only stop when it stops. And there is little to no retribution to be gained even from the rare victory.

First among those agencies is the Dept. of Education, which should be renamed the Department of mis-education and brain washing. We need to take government out of public education because it never had a real reason to be in it and the government has completely screwed up public education, it is all FUBAR now. The best side benefit could be the dismantling of the worthless, self-serving teachers’ unions.

The obvious politicization of the FBI, CIA, and NSA demands a complete house cleaning, top down.

American exceptionalism has been replaced by American complacency and we are all paying way too big a price for that. The last railroaded election has shown what grows when the seeds of complacency blossom. Stupidity, venality, amorality, and oppression of the taxpayers. If we don’t act en masse soon our Republic is lost.