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The Trouble With “Going High”


Michelle Obama famously said of Republicans, “When they go low, we go high.” While I applaud the sentiment, she may not have fully understood just how low Republicans might go, given enough time and money. I assume she and her husband have since adjusted that equation. Both are surely on Trump’s lengthy enemies list, and no amount of going high will count for much if he takes over.

It's time for Democrats to rethink that approach. Being on the side of right and good doesn’t seem to be cutting it right now. I’m hearing a lot of hand-wringing about the fanatical low-ness of the fanatical right, but not much about practical ways to deal with it.

Our imagination has failed us. We never imagined people so vile. We knew such people existed, but felt surely they were only on “the fringes.” We ignored the warning signs.

Now, the Supreme Court is finished with warning signs. If there were any questions remaining about the unacceptable direction they want to take this country, they’ve been resoundingly answered.

Their spectacularly nonsensical decision to grant Trump even limited immunity tells us, once and for all, that Trump is their horse, and they’ll ride him into Hell if need be.

How anyone with even a sixth-grade education, let alone a law degree, could decide to go this far for Trump’s sake speaks, more than anything else, of blackmail. We’ll probably never know what leverage Trump — or perhaps Leonard Leo — holds over these traitors, but they are doing the bidding of very dark forces, and I’m not sure they’ve thought it through.

In what amounts to a court-ordered coup, the judicial branch has declared war on the other two branches of government. The six ideologues on the Court are spitting in the eye of the vast majority of Americans, and they’re daring the government to do something about it.

The executive branch needs to take that dare, while it’s still in the hands of the sane.

SCOTUS just invested enormous power in the presidency, in anticipation of a Trump dictatorship. Why they decided to do it now, while there is still a Democrat in charge, is strange, and a bit unsettling. What do they know about the next election that we don’t?

Even so, it is inconceivable that Joe Biden would not use the immunity decision to expand his own power — even if only temporarily — to fight off the abominable forces of Trump, SCOTUS, and the Republican party. He is the president, after all.

The key to the immunity ruling lies in the distinction — or the supposed distinction — between “official” and “unofficial” presidential acts. How this plays out in the real world is massively unclear, not just to me, but also to Justice Sotomayor, whose blistering dissent describes the inherent lunacy of the decision much better than I ever could. She illuminates the contradictions, paradoxes, and nonsensical reasoning that are now, in effect, our new legal system.

Nobody knows exactly what powers the president now has, but I’d much rather see Biden figure them out than Trump. Seems to me there is no shortage of acts Biden can perform, at his own discretion, between now and the next inauguration that will be undeniably official, yet plainly done for partisan reasons.

Whether they carry presidential immunity or not will take years to sort out, and will need to be litigated on a case-by-case basis. Meanwhile, any lawsuit Biden triggers can be stalled almost forever, a trick Trump himself taught us all. Let’s use it against him.

Which brings us to the wonderful world of executive orders. Because under SCOTUS’s new rules, Biden will, without doubt, have a broader palette to work with.

As they’ve evolved over the last twenty years or so, executive orders have become largely a matter of “Shoot first, ask questions later.”

I’m not saying Biden should necessarily have his Justice Department arrest and prosecute Alito and Thomas — and their wives while they’re at it — though I have no doubt that there’s ample evidence to do so.

And as sweet as it would be to see Biden suspend the Supreme Court, expand it by six seats, codify affirmative action, reverse Citizens United, and declare all abortion legal — all by executive order — I think we’ll need to think more modestly. Not because these things aren’t strategically feasible, but rather because Democrats won’t be comfortable going that low.

Still, I would like to think that somewhere in the upper levels of the administration, there are people brainstorming executive orders that will certainly qualify as “official” — part of a president’s official duties — but not clearly defined by the law.

Better yet, they could work completely within existing laws, but order changes to governmental norms — another thing Trump taught us how to do.

To take just one loaded example, the need for an arms-length relationship between the President and the Attorney General has only been in practice since Watergate. It was never a law, or even proposed as one. While most Democrats would feel squeamish about violating that norm, let’s remember that Trump and Bill Barr ran roughshod over it five years ago. And they’ll do it again, given the chance.

So what, besides that squeamishness, prevents Biden from ordering Merrick Garland to more aggressively investigate and even arrest those congressmen who clearly broke the law in connection with Jan 6? Why not make public examples of Jim Jordan, Scott Perry, Tommy Tuberville, Marjorie Taylor Greene, and others who were identified by name in the Jan 6 Committee hearings? Why not indict them? Even if the charges don’t stick, they’ll be out there in election season with scarlet letters on their foreheads.

We are very much in uncharted territory. SCOTUS is changing the rules right in front of us, and the immunity decision isn’t even the worst thing they did last week. But when rules of this magnitude change, it opens up all sorts of opportunities to test, feel out, and push the envelope of the new environment.

Democrats need to do that, and fast. To wait around for Trump to use these new powers — when they’d be far better used to keep him as far away from the presidency as possible — would be madness.

Even if Trump were elected, there would still be time before the inauguration to arrest him on national security grounds, or something. Nobody wants to go that low, but there’s no amount of going high that will cause this Supreme Court the slightest concern about swinging the election to Trump, given the opportunity.

So big ideas are called for. There are brand new legal tools available, and dire reasons to use them.

There’s nothing low about using them on Republicans.


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