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The founding fathers of this country disagreed on many things. But, one thing they agreed on was that the rulers of their new country should not be too powerful. They were angered by what they viewed as King George III’s tyranny in ruling the empire he oversaw. So, they endeavored to create a new country built on laws, not the whims of one ruler.
With a ruling late last month that American presidents have broad immunity for their officials actions while in office, the U.S. Supreme Court’s conservative majority turned this founding principle on its head.
As Thomas Paine wrote in “Common Sense,” “In America the rule of law is king … in absolute governments the King is law, so in free countries the law ought to be King.”
Alexander Hamilton was more direct. “The President of the United States would be liable .. to prosecution and punishment in the ordinary course of law. … In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” he wrote in “Federalist 69.”
It is clear the founding fathers strongly believed that everyone — including presidents — were subject to the nation’s laws, according to many constitutional law scholars.
“It was remarkable. There were so many issues where the founders disagreed, but this was not one of them,” Holly Brewer, the Burke Professor of American History at the University of Maryland, told ABC News. She was one of 15 scholars who signed a brief to the court urging that the justices find that presidents did not have broad immunity.
It is a confounding ruling for justices who often cite their fidelity to the founders’ original intent and a strict interpretation of their words.
It is also a dangerous ruling with Donald Trump, who has long expressed admiration for tyrannical leaders, again running for president.
The case stems from Trump’s claims that he is immune from legal consequences for his involvement in efforts to overturn the results of the 2020 presidential election, including the violent attempts to stop the certification of those results at the U.S. Capitol on Jan. 6, 2021. The Supreme Court did not fully dismiss the four counts of election interference against Trump, instead returning the case to a lower court. But, the conservative majority’s ruling that presidents are largely immune from prosecution for their “official actions,” which the opinion did not define, seemingly gives presidents broad power to act in unchecked and illegal ways.
Presidents, of course, need latitude to govern. For example, a chief executive and members of his cabinet may make decisions, based on the information at hand at the time, that turn out to be wrong. People may be harmed. Allowing presidents to be sued or prosecuted in such situations could paralyze government.
But, when presidents act in bad faith, as Trump did when he tried to overturn, through many means, the results of the 2020 election, they should not be immune from legal consequences. To weaken the accountability for such behavior will, we fear, only encourage more of it.
That is a large reason that the recent court ruling is so troubling — it empowers the worst impulses and actions of a man who is not bound by the common norms of decency and civil behavior. Trump’s behavior shows why guardrails need to be strengthened, not torn down.
“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law,” Justice Sonia Sotomayor wrote in a blistering dissent, joined by Justice Elena Kagan and Ketanji Brown Jackson.
“Finally, this majority’s project will have disastrous consequences for the presidency and for our democracy,” Sotomayor added.
The Founders recognized that an American president, any president, must not be above the law. The Supreme Court’s ruling, alarmingly, moves the country further away from that founding principle.
