The Imperial Presidency Is Now Legalized

Mel Gurtov

(7/5) The US Supreme Court’s July 1 decision to grant absolute immunity to a President’s official acts is indeed, as Senate Majority Leader Charles E. Schumer (D-N.Y.) wrote on X, “a sad day for America” and “our democracy.” Donald Trump and future presidents are evidently now free to follow their worst instincts if they don’t like the result of elections—or anything else.

Absent any guardrails, presidents, by claiming they are acting in their official capacities, may incite insurrections, order the justice department to detain critics and round up aliens, declare elections invalid, and ignore Congress if it doesn’t follow his will—for instance on Social Security and abortion. The Court’s ruling is borderline insanity, feeding the impulsiveness, delusions, and vengefulness that define Donald Trump.

Who is to say that such acts are not part of the President’s official duties? And if challenged on once-illegal decisions, will a Supreme Court have the will to deny the President his imperial prerogatives?

Justice Sonia Sotomayor’s blistering dissent makes plain that the Court’s decision “reshapes the institution of the presidency,” makes the president a king, and discards the sacred principle that no one is above the law. The President no longer has limits on what he might demand of the justice department—once upon a time independent of the executive branch—or of an underling, up to and including ordering the assassination of an opponent.

The Supreme Court’s decision sullies the oath of office a President takes. It is no longer meaningful that the President swears to protect and defend the Constitution. Nor can a President’s vows to defend the nation against “enemies, foreign and domestic” be taken at face value when now, a President may act against those he considers “enemies of the people.” Trump has told us who they are: members of the media, certain judges, and former officials in his previous administration who have turned against him.

The Court has thus given new meaning to “imperial presidency.” That term came into widespread use at the height of the Vietnam War. Courts at every level have traditionally upheld expansions of presidential power, citing national security. Now that deference has become carte blanche for “official acts” that go far beyond national security, posing great risks to democratic institutions. The six "conservative" justices who have granted Trump a wide path to criminality seem oblivious to those risks.

Immunizing a President from the rule of law has consequences abroad. American exceptionalism has taken a beating for a long time. Now we can bury it. We’re not the “shining light” our founders had hoped we would be.

So let us now stop preaching to other countries about respect for the rule of law, free and fair elections, and the importance of a system of checks and balances. We’re on a path to becoming another banana republic, an American version of far-right autocracies that are spreading throughout Europe. A thoroughly politicized Supreme Court is just the start of America’s de-democratization--open for business, responsive to the most illiberal forces in society, and amenable to strong-man rule.

Conceivably, the district court that ruled against Trump’s claim of absolute immunity will do so again based on his illegal “unofficial” acts. But any such outcome will be subject to new litigation and, if Trump wins in November, to dismissal.

All the more reason why this election will be a turning point in American history. Liberals, progressives, and independents must unite to prevent a far-right victory in Congress as well as in the White House. An independent judiciary and specifically an incorruptible Supreme Court should be a major theme of Democrats.

The other side is inventing new rules of law. There is no time to lose.

Mel Gurtov is Professor Emeritus of Political Science at Portland State University.

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