Very little actually surprises me anymore. Even something unexpected is generally within some range of possibility that I anticipated. The “No Kings Act,” which was introduced today by Senate Majority Leader, surprised me. No, just not surprised. It stunned me. I was actually speechless.
At a high level, the statute purports to reverse Trump v. United States, eliminate criminal presidential immunity (but not civil), and divests the Supreme Court of appellate jurisdiction over any prosecution of a former President, or even a challenge to the statute itself.
Let’s walk through the bill. Section 2 explains that the “purpose” of the law is to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress.” Clarify? That statement expressly conflicts with the holding of Trump. And Section 3 provides, “A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress.” This statement flatly contradicts how a majority of the Supreme Court interpreted Article II.
Curiously, the statute says nothing at all about civil immunity under Nixon v. Fitzgerald. Apparently that made-up immunity, which was the basis of Chief Justice Roberts’s decision, is A-Okay. Also, nothing in Trump even hinted that the Vice President has immunity. This provision could have some unintended consequences for the Vice President acting as President of the Senate, who (under modern law) receives some protections under the Speech or Debate Clause.
It gets worse, The law provides that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.” If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent–they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts “may not consider’ whether a law imposes a substantial burden on access to abortion. That would have been so simple!
Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don’t get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn’t quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.
Section 4 of the law modifies judicial review of “any criminal proceeding commenced by the United States” against a President or former President. Actions can be brought in the applicable district court. But here comes the kicker: the judgment of the court of appeals with regard to immunity is final!
“The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President.”
A conviction of the President of the United States would stop with the inferior courts, and most likely, the D.C. Circuit, which by the way, will have a Democratic-appointed majority for at least the next two decades or so. If only President Reagan had thought of this idea when he had appointed the majority of judges on that court!
What else can SCOTUS not do? The bill lists eight items that the Supreme Court cannot do it itself, or direct other courts to do:
(A) dismiss an indictment or any other charging instrument;
(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;
(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;
(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;
(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;
(F) overturn a conviction;
(G) declare a criminal proceeding unconstitutional; or
(H) enjoin or restrain the enforcement or application of a law.
This is breathtaking. If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him. I’m old enough to remember debates about the Suspension Clause and jurisdiction stripping from the Bush era. Democrats apparently favor full the full panoply of habeas rights for the mastermind of 9/11, but not for Trump. Priorities. If only Lincoln had such powers! John Merryman and William McCardle could not be reached for comment.
So what should the judiciary do with such a statute? Well, the bill imposes strict limits on whether these restrictions can even be challenged. Facial challenges must be brought within “180 days after the date of enactment of this Act.” As I think about the Court’s “facial” analysis in Rahimi and NetChoice, I cringe. Certainly this statute must have some constitutional application? So a facial challenge would fail, right? What if the President breaks the law on Etsy?
And if President Harris wins, and lets this statute go into effect, a facial challenge could never be brought. To test the constitutionality of this statute, future Presidents would have to wait to be indicted, after they leave office. A facial challenge would no longer be possible. Everyone who criticized Whole Woman’s Health v. Jackson and S.B. 8 can switch sides. I can think of standing arguments why a sitting President would be able to challenge this law in office, notwithstanding its limitations–talk about a chilling effect–but I’ll save those points for another time.
And an as-applied challenge “may only be brought not later than 90 days after the date of such enforcement or application.” I don’t even know when this clock would start ticking. If a former President is indicted, and a district court (following this statute) denies immunity, would the defendant then bring a collateral civil challenge to the statute in federal court? Wouldn’t there be abstention doctrines at play? Wouldn’t it make the most sense to consider the immunity issue on direct appeal–and that appeal would necessarily consider the constitutionality of the “No King Act”? Even under Justice Barrett’s conception of immunity, the denial of immunity would trigger an interlocutory appeal. Maybe I’m missing something, but I have no idea how an as-applied challenge would even work here.
Let’s say that a former President manages to bring some sort of as-applied challenge in a timely fashion in the right court. The statute even purports to define the appropriate standard of review: “A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.” A presumption of constitutionality, coupled with a “clear and convincing evidence” standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.
Is there any other similar statute that directs the courts to apply a particular standard of review? Some of the bills to “overrule” Loper Bright direct Courts to apply Chevron deference. That could work under the APA (assuming Justice Thomas is wrong on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret a claim of constitutional immunity? I think the Supreme Court would find this statute unconstitutional, but they would have no power to hear the case!
Oh, and by the way, challenges to the statute itself can only be litigated in the District of Columbia District Court, and the D.C. Circuit. And the buck stops with Chief Judge Sri Srinivasan:
In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.
The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.
More jurisdiction stripping!
To be sure, this bill is prospective. We can imagine what an Attorney General Jeff Clark would do with this bill, right? Certainly this bill can’t be about Trump, right? Ex Post Facto Clause, right? Wrong.
If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.
Huh? Am I reading this right? Any existing criminal that is in effect now could be brought under the auspices of this bill. In other words, if any pleadings are made about immunity in Judge Cannon’s court, she would then be required to reject an immunity claim? Could this be the rule?
There is one provision that I can’t quite make heads-or-tails of:
No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.
What is going on here? I think this is hinting at an issue where some other federal court, hearing some related issue, may opine on the constitutionality of the statute.
Perhaps the most brazen part of the bill is Section 6(b)(vi):
All appeals from the United States District Court for the Northern District of Texas, Amarillo Division, shall be taken to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection. This provision shall be known as the “Stealth Impeachment of Judge Matthew Kacsmaryk Law.”
No, Section 6(b)(vi) is not in the bill, but you believed it. And you better believe progressives will try to strip the Fifth Circuit of jurisdiction.
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Let me be clear. This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill. Remember, this is not some sort of fringe proposal from the Squad, but was introduced as a priority bill by the Majority Leader. The whirlwind cometh. Once the Supreme Court’s jurisdiction is stripped for presidential immunity, it is only a matter of time before similar bills are passed for abortion, the Second Amendment, RFRA, and so on. This bottomless hole keeps going deeper.
President Biden’s pointless op-ed, which did not even bother to specify whether a statute could impose term limits, was apparently just a warm-up act. Senate Democrats are going all-in on destroying the judiciary as we know it. Remind me again how cataclysmic it was when Trump referred to “Obama judges”? I welcome comments from the Never-Trumpers who think Kamala Harris is the last chance to save our republic.
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