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The Court’s ‘Make It Up As You Go’ Constitution

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May 23, 2025 2:20 p.m.
WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Associate Justice Brett Kavanaugh (L) share a laugh with Chief Justice John Roberts while waiting for their opportunity to leave the stage at the conclusion of the inau... WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Associate Justice Brett Kavanaugh (L) share a laugh with Chief Justice John Roberts while waiting for their opportunity to leave the stage at the conclusion of the inauguration ceremonies in the Rotunda of the U.S. Capitol on January 20, 2025 in Washington, DC. Donald Trump took the oath of office for his second term as the 47th president of the United States. (Photo by Chip Somodevilla/Getty Images) MORE LESS
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What interests me most about the Supreme Court’s telegraphed decision ending independent agencies is the ease with which they discard their governing theories (unitary executive) when the results are ones they find unpleasant (ending the independence Federal Reserve). Let’s make a note in passing that as long as they were going to make this disastrous decision, I’m glad they were also hypocrites and exempted (or suggest they are going to exempt) the Federal Reserve, because not doing so would have made it even worse.

It’s very much of a piece with 2024’s presidential immunity decision. It is demonstrably the case that the U.S. Constitution does not provide the President with any immunity from prosecution. You can argue this from absence (it literally doesn’t provide it); you can argue it from general logic, which is admittedly an inherently slippery kind of argument (no one is above the law); perhaps most convincingly you can argue by the fact that the Constitution writers very much knew how to provide immunity where they believed it should exist and did so in the case of members of Congress (speech and debate clause). They knew how to do it and decided not to for Presidents. The most generous reading of the aptly-named Trump vs. United States is that Roberts et al. decided as a matter of policy that such immunity should exist and therefore decided to create it. But it is entirely a 21st century creation with no basis whatsoever in the actual Constitution.

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