What lies ahead for America after Trump v. United States?

IV

To the extent that the new paradigm of majority responsibility allows presidents to escape punishment for their criminal acts while in office, the seeds of absolute power for presidents have been sown. And there is no doubt that absolute power corrupts absolutely. “If one man can be allowed to determine for himself what the law is, then every man can. That means first chaos, and then tyranny.” Ibid., 312. Similarly, “if government becomes criminal, it breeds contempt for the law; it invites every man to become the law; it invites anarchy.” Olmstead, 277 U.S. at 485 (Brandeis, J., dissenting). I fear that after today’s ruling, our nation will reap what this Court has sown.

Simply put: The Supreme Court has held for the first time in history that the most powerful official in the United States may (under circumstances not yet fully defined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will have to remain ever vigilant, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos wrought by the decision of this Court. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.” Cohens v. Virginia, 6 Wheat. 264, 389 (1821).

For my part, I simply cannot abide the majority’s senseless rejection of a model of criminal liability that treats every citizen of this country as an equal under the law—as required by the rule of law. This basic principle has long prevented our Nation from descending into despotism. Yet the Supreme Court has now decided to lower the barriers of the law for one extremely powerful class of citizens: any future president who is willing to disregard the boundaries set by Congress.

In short, America has traditionally relied on the law to keep its presidents in check. But starting today, Americans must rely on the courts to determine when (if ever) the criminal laws their representatives have enacted to promote individual and collective security will act as speed bumps on presidential actions or responses.

Once self-regulating, the rule of law is now becoming a rule of judges, with courts deciding which crimes committed by a president must be forgiven and which may be deemed intolerable. So ultimately, the Court itself will decide whether the law will pose any obstacle to any future criminal trend that emerges from the Oval Office. The potential for great harm to American institutions and Americans themselves is obvious.

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Most of my colleagues seem to trust the ability of our Court to prevent Presidents from becoming Kings by individually applying the vague standards of their new paradigm of presidential accountability. I fear they are wrong. But for all our sakes, I hope they are right.

In the meantime, I object because the risks (and powers) that the Court has now assumed are unacceptable, unjustified and clearly contrary to fundamental constitutional norms.