So: We're a Monarchy Now
...nested inside kritarchy on behalf of the oligarchs
The -archs of the moral universe bend toward Just-Us.
We live in a monarchy now. The Supreme Court ruled that the President is a king (Trump v. United States).
Salina, Kansas, 6/2/10, photo by me
In their less-publicized and harder-to-understand rulings of the days previous, the Court ruled that huge swaths of the nuts-and-bolts workings of the government just can’t do their jobs anymore…
…because every rule ever made is perpetually challengeable (Corner Post, Inc. v. Board of Governors of the Federal Reserve System);
…because agencies have to reply to literally every single comment during the rule-making stage or else be blocked by the Court (Ohio v. EPA);
…because enforcement actions can’t fine somebody without allowing them a jury trial in court (SEC v. Jarkesy);
…and because judges know more about everything than every expert ever employed in over 400 agencies to keep water safe, drugs effective and safe, air clean and breathable, etc. (Loper Bright Enterprises v. Raimondo).1
It’s okay if you don’t understand the previous list. Those decisions were intentionally made, then covered by the press in a way to make you not understand or care about them. But they all concerned the administrative state (agencies and regulators) technically under in the Executive Branch, but empowered by laws passed by Congress to do what they do in order to monitor, address, and resolve problems affecting hundreds of millions of us every single day.
In every one of those cases, the Supreme Court—excuse me, a majority of the Supreme Court—ruled that these Executive agencies, empowered by laws passed by the Legislative branch, can pound sand, and if they want to do something, they better come hat in hand, groveling for mercy before the Court.
Rule by a bunch of judges, which I had to look up, is called a kritarchy. Back when conservatives were railing against Supreme Courts that allegedly “made policy” and “stuck their noses into issues that the legislative branches should deal with”—that is, back when “judicial restraint” was the talking point of the day—some folks called it a jurocracy, and a bunch of books were written about how “unelected judges” were really in charge of the country.
It is to laugh.
Even the Coronation decision, Trump v. United States, still places SCOTUS at the top of the mountain. They get to decide, ultimately, which presidential acts are immune, presumed to be immune, whether and when that presumption has been overcome, whether supporting evidence can be introduced from “official” acts to be used in court to prosecute a president for criminal behavior in “unofficial” capacity, and so on. This is why, as it stands, the It’s Good to Be The King decision really only helps Trump and not Biden or any other potential Democratic president.
We have a king, but above that king stands a ruling council of supreme judges who control even him.
And who do they serve? Well, looking at Clarence Thomas’ gift receipts and the most recent corruption ruling (Snyder v. United States), I’d have to say they serve the interests of the conservative legal movement and its founders and funders, especially the billionaire class that wants free reign to operate however they wish.
So: there’s your oligarchy.
Monarchy
According to The SCOTUS Six in Trump v. United States, the immunity decision, anything the Constitution directly grants the President power to do (command the military, grant pardons, conduct foreign affairs, etc.) is stuff he can do with complete immunity, regardless of how he does it. That is, he can do it in total contradiction to the rule of law, the intent of Congress, previous rulings of the courts, anything. So long as the Con grants him the power, it’s his, and how he does it doesn’t matter. He can rule as Bizzaro President, and there’s not a goddamn thing anybody can say or do about it.
To John Roberts’ mind, the Constitution builds these exclusive little rooms, marked EXECUTIVE, LEGISLATIVE, JUDICIARY. The ones labeled EXECUTIVE are just for the president. As long as he’s inside those rooms, everything and anything he does is legal and immune. He’s unaccountable.
Commander in Chief? Well, that’s an executive power, so it’s a Presidential Suite, right? So he can enter that room, command the generals to murder Congress and seize permanent power in a military coup, and because all that business is conducted inside a designated Executive SCIF nothing that was said in there can be questioned, known, used in court, gainsaid, nothing.
Anything that involves his official powers that aren’t specifically mentioned in the Constitution (like conversing with the Attorney General or the Vice President) are presumed immune to prosecution, regardless of the substance of those actions. So he can leverage, threaten, coerce the Veep to disallow electoral slates to stay in office, and that’s presumed immune. He can order the AG to have the political opposition all arrested under terrorism statutes and sent to black sites, and that’s presumed immune.
The substance of those conversations—even if we have them all on UHD video with crystal clear audio—can’t be used as evidence against him in court because his motives are off the table. His motives don’t matter. The Constitution says he has the power and duty to “faithfully execute the laws,” so he can freely give orders to the nation’s top law enforcement officer, but we’re just ignoring the “faithfully” part from now on. Unless “bad-faithfully” is implied and included.
He can tweet out a call for the highest bidder to offer him a bribe to pardon Joe Schmoe, and when he receives that money—personally, in his own bank account—he can then pardon Mr. Schmoe, and the evidence of his tweet, and the payoff, don’t matter because the pardon power is a core Constitutional authority granted to him. Full stop.
I’m not making a goddamn bit of this up.
America used to have an elected President. As of July 1, 2024, it has an elected (for now) King. Don’t believe anyone who says anything different.
King Joseph Robinette Biden Jr.
Our current King is trying to refuse the crown:
I know I will respect the limits of the presidential power, as I have for three and a half years. But any president, including Donald Trump, will now be free to ignore the law.
I concur with Justice Sotomayor’s dissent today. She — here’s what she said. She said, “In every use of official power, the president is now a king above the law. With fear for our democracy, I dissent,” end of quote.
Joe dissents. Great.
Here’s the problem: just because you say you’re a decent, self-restrained guy and you probably mostly are doesn’t make it okay that self-restraint is all we have to rely on. (If only someone had been pointing this out about police.)
I could kill you with impunity, but I’m nice, so I won’t. Gee, aren’t we lucky!
That’s no basis for a system of government.
Biden says we should vote for people who don’t agree that Presidents should be Kings of America. Well, I agree with that.
The problem is, the people who declare what the law and the Constitution say have determined that Presidents are Kings, so what are we going to do about that now-systemic problem? The Trump v. United States ruling is now law and precedent, as shameless and shoddy as it is.
Even if we vote for the guy who’s trying to refuse the crown, the law presently says he’s wearing it. We literally have a king. He’s a weak king because the kritarchy that crowned him will yank his leash if he tries to use any of his royal powers, but he’s still the king.
What Might Be Tried
AOC says she’s introducing impeachment articles, reportedly against all Six of the traitors. Good. Anyone who signed onto that decision is on record for undermining democracy in America and should be impeached. Will it happen? Not taking any bets here.
I mean, there should definitely be hearings and subpoenas and a lot of very public investigation, but actual impeachment of the justices? And conviction? Removal and replacement of all six? By a Democratic president? This president—excuse me, king? Within the next four months?
New York Congressman Joe Morelle says he’s going to introduce a Constitutional amendment to overturn Trump v. United States. Okay. Good luck with that. You need two-thirds of both houses of Congress and then ratification by three-quarters of the states. Even if that were likely in this plane of existence, it would take a helluva long time.
We could have been done with all this shit if the GOP Senate had just done the right thing and convicted Trump in his first impeachment, but no. Or his second, when their lives were under threat. But no.
What Won’t Be Done
Heather Cox Richardson shot down a lot of the “Well, can’t Biden just do a dictator thing and play SCOTUS’ game right back at them?” with the following logic: No, Biden can’t do that because the way SCOTUS wrote the decision, SCOTUS ultimately gets to decide whether an action is “official” or “unofficial,” and you can be damn sure they’ll rule that whatever Biden does is unofficial, so not immune from prosecution.
The thing is, Heather Cox Richardson doesn’t think like I do.
See, SCOTUS only gets a chance to rule that Biden’s actions are subject to prosecution if Biden acts, then gets challenged/indicted, and the issue goes to SCOTUS where there are…any surviving members of the SCOTUS Six.
Heather Cox Richardson is a decent person so she doesn’t think about the Decapitation Strike, the most dramatic, yet effective, scenario I could come up with in my misery and desperation and helplessness. It went something like this:
Biden enters one of his EXECUTIVE SUITES and “converses” with the AG and the Military, instructing them to literally weaponize the loose PATRIOT ACT and subsequent laws to assassinate approximately 200-500 of the country’s top right-wing figures in Congress, governor’s mansions, the SCOTUS Six, Leonard Leo, Tucker Carlson, Nick Fuentes, Kevin Roberts, Elon, much of the Fifth Circuit, Trump of course, etc. Probably renditioning their families as well to black sites as hostages. The Federalist Society is now a terrorist organization, all its members assets frozen or seized, Heritage and Claremont razed to the ground by drones. Maybe Fox News, too.
With significant chunks of the opposition dead or missing and a huge reign of terror and Night of the Long Knives to intimidate the watery shit out of anyone who supported Trump because they were afraid of Y’all Qaida, immediately expand SCOTUS to at least 13 spots to correspond to the number of circuits. Institute all the talked-about reforms people have been on about for a decade or more. Fill those slots with a now-shit-scared-into-compliance Senate, and fill them with people like Sotomayor, Jackson, and Kagan—that is, people who would be horrified at what Biden just ordered and did. Hell, abolish the Electoral College while we’re at it. Any resistance by surviving Republican governors, members of Congress, Senators, etc. is countered bluntly with threats to life, health, life/health of loved ones. Or just whack them, too. If there’s any civil unrest by Trumpists, crush it with martial law and the US military.
Somewhere in there, Biden announces to the country that because SCOTUS gave him immunity, all of this is legal and what Kings can do. If you don’t like it, you need the old system back, and unfortunately, the enemies of democracy killed that system. So he killed the enemies of democracy. Suck it. This is what Trumpism wrought. This is what you voted for, Trumpists. Are you not entertained?
Biden issues pardons for everyone in the chain who executed his orders.
This much accomplished, Biden resigns. Kamala Harris becomes POTUS.
Harris then directs the arrest of Biden for high crimes, etc.
Biden goes to trial, maybe gets off under the precedent of Trump v. United States until it’s appealed by the Harris DOJ all the way back up to SCOTUS, where the new, expanded court filled with rule-of-law justices overturns the precedent and restores accountability to the office of the presidency. Biden gets sentenced to life in prison, which will only be a few years, and maybe he can serve it in a nice Club Fed for being the bad guy the country needed to save it, despite it going completely against his character.
Harris’ DOJ methodically starts challenging all the shit decisions that have eroded and gutted democracy for decades, and these are all deemed wrongly decided by a sane SCOTUS until we get back to something like Madiba Dennie’s Inclusive Constitutionalism or whatever.
We might have to suspend the 2024 election in there to let Kamala do her thing, though all the above would be much more effective if it happened over the span of the next four months (literal “blitzkrieg”), and maybe she’d have to resign after all it’s over, too, just to set things back to normal, but omelette…broken eggs.
TL;DR: the GOP broke America. Nice guy Biden does a heel turn to demonstrate just how bad breaking America is, punishing the America-breakers for the breaking, using the immunity they carved out for their people (thinking he’d never ever take it so far as to completely run the table), while simultaneously removing virtually every veto-point obstructing the structural reforms the country needs to move forward, then stands down to be subject to the rule of law he technically didn’t violate but really did. Biden as Sin Eater.
Of course this won’t happen. Morally, it shouldn’t happen (well, maybe it shouldn’t happen…I’m starting to waver on utilitarian grounds).2 It’s the age-old question of whether you can murder a few to save the many or whether you can become the evil you oppose in the name of preserving the good you seek.
But honestly, folks, that’s just about the only Hail Mary (or, in this case, Hail Beelzebub) I can see. Maybe there’s something else possible.
Remember how we were saying “When they deprived Obama of his SCOTUS nomination, we should have been out in the streets?” The fact that we’re not in the streets today is all the evidence you need that we’re really not a very serious country after all.
We worship celebrities and look for saviors. Yet my Savior scenario above is horrifying to y’all. We expect “the institutions” to save us. Yet the Supreme law-keepers of the land just overturned the foundation of the rule of law.
So maybe we deserve to be ruled by Kings and Judges and Oligarchs. After all, we let it get to this point.
What’s Left?
Literally the best shot we functionally have, given the state of the field and our own lack of moxie, is to vote Democrat, which is depressing as all hell.
Those twits are likely to think of Trump v. United States as the replacement for “They’ll overturn Roe!”—instead of fixing the structures that made this possible, they’ll just insist we must vote for Dems in every election forever lest a BAD KING gets in and becomes a dictator, whereas all the Democratic GOOD KINGS will continue to refuse the crown they technically wear.
Which brings us to the other shocker of the past week: Biden’s awful spectacle at the presidential debates his campaign pushed for, largely to dispel any remaining notion that Joe was too old and infirm to do the job. (And my Tassie friend said irony was dead in America.)
Down with the King?
It’s really hard for me to care about this as I try to adjust to my complete transition to medieval serf, but….
Yes, we should field the best candidate to defeat Trump because an evil king who absolutely will milk to the max every single immunity the Court just conferred is a bad thing. Nobody can be certain who that is because nobody can see the future, though it’s ludicrously hard to imagine Biden barnstorming the country vigorously awakening the populace about the stakes and doing a Paul Revere here. Some good arguments on both sides, honestly. And absolutely no one I know, much less myself, has any input or influence on Biden’s decisions, or those of the power-players involved. So my view doesn’t matter.
I’ve been saying democracy would be over if Trump won before SCOTUS made this ruling. Now, with the ruling, it’s kinda over regardless of Trump winning. We all simply live at the pleasure of the president, whoever he happens to be. That’s what living under an unaccountable king who rules a superpower means.
But yeah, if Biden stays in the race, vote for him. I don’t care if he’s non compos mentis or a reanimated corpse. (Maybe if he’s far gone enough, he’ll go for the Decapitation Strike scenario above.) If it’s Harris, vote for her. I don’t care if she’s a cop. If they shaft Harris, it will be a dirty deed, but vote for that person anyway.
Just remember you’re voting for king now, and you will be every four years until we fix a whole helluva lot in this system.
Happy “Independence” Day.
See Chris Geidner’s Law Dork argument for this. He’s not alone in noting it, but you have to listen to a bunch of SCOTUS followers to know that.
I’m not advocating the Biden Heel Turn-Sin Eater Scenario, but let’s be clear about the description of what would be required—and yes, legally permitted—under Trump v. United States, for a Savior approach to fix this. And if you don’t like it, ask why. I think at some level it has to come down to a disbelief that these people have really decided they are at war with democracy and its loyalists, a naivete about what authoritarianism means, or a naivete about what winning a war involves if you’re serious. The Supreme Court has overturned the fundamental idea of the rule of law to shield the former guy and prepare the way for his return. Does the fact that this happens “legally” or “according to the rules” mean we are helpless?
If you reject the morally…shall we say…“problematic” Heel Turn-Sin Eater option, there remain only two choices: be a “good German” and accept up-ratcheting losses of agency, freedoms, dignity and humanity in the generalized hope that you can put up with the encroachments and/or they won’t affect you all that much (or hell—you can embrace the new regime and rise as high as your ambition can dream)…or start learning from organizers like Kelly Hayes and Mariame Kaba and develop small-scale safety and solidarity networks that can (a) protect their own members, (b) provide for their own members, and (c) resist as much as possible. The problem is that the solidarity path is so much more work and humble learning than most of us are willing to engage.