Trump’s hero, Andrew Jackson (from Trump’s first administration when he hung Old Hickory’s portrait in the Oval Office) was enraged by South Carolina’s attempted nullification of a tax bill Jackson had signed into law (South Carolina’s nullification decree was written by his vice president John C. Calhoun, “the Great Nullifier” [1]). Jackson, a famously violent psychopath, was mad enough to kill. Calhoun advanced the proposition that any state may nullify any federal law that is not in that state’s best interests. Jackson’s public response was to threaten to go to South Carolina and personally hang Calhoun. South Carolina was forced to back down and the federal government’s power was retained, for the moment. That Jackson hadn’t followed through on his threat to kill Calhoun was one of his greatest regrets as he was leaving office.
In our current Age of Incoherence, presidential nullification (if the president is Republican) — of Congressional budgets, of agencies created by Congress, of civil service and immigration law, of separation of powers, of long cherished norms and common decency — is fine, according to the Supreme Court.
It’s crucial for thinking people to understand this anti-democratic mechanism for centralizing all government control in a corporate CEO with no constraint from a board of directors and no input from stakeholders. Koch’s network of “think tanks” have coined the idiotic term Unitary Executive as shorthand for this kind of imperial presidency and it has long been their dream to have a supremely manipulable, brazen puppet in the Unitary Executive’s chair. The better to advance their long game agenda to destroy “majoritarian tyranny”.
Our democracy lurched to a jarring halt during the heat of the 2024 presidential campaign when six unelected members of an activist, far-right judicial fraternity decided Trump v. United States in Trump’s favor. The 6-3 Trump appointed majority (the result of a political deal he made with Leonard Leo/Charles Koch/Evangelical leaders, brokered by the far-right Council for National Policy) delayed hearing the case for months, putting the criminal case against Trump for his multi-pronged attempt to retain power after losing the 2020 election on ice until it was too late to prosecute him for crimes he definitely, and publicly, committed. Then they ruled in favor of Trump.
A president, they ruled, specifically for Trump’s benefit, may not be held accountable for criminal acts done while performing the core duties of his office. A convincing hypothetical for when this criminal act might be necessary was not provided. President Trump, they ruled, is presumptively immune from prosecution for all criminal acts done as president, and proof of criminal acts protected by his new “core duties” absolute immunity may not be offered in evidence in any other criminal case against him. The Fascist Six gave candidate/prospective president Trump, the proverbial carte blanche. For dessert they ruled that no presidential pardon may ever be challenged as corrupt or an abuse of power. How you feeling now, Ghislaine?
If it was illegal for Trump to create a government “department” (that power is reserved for Congress), appoint his top donor to lead it, illegally fire tens of thousands of protected civil servants without cause, and harvest sensitive, personal data on every American, see Trump v. US. If Musk’s actions were criminal, there is no questioning Trump’s pardon of Musk, if the president deems it advantageous to pardon his deeply creepy former bestie, see Trump v. US. If withholding the funds allocated by Congress, sole holders of the “power of the purse”, by the president was illegal, a flagrant violation of the Impoundment Control Act of 1974, see Trump v. US.
The 6-3 majority has increasing used the “Shadow Docket” (formerly reserved for extreme emergency applications) to rule in Trump’s favor whenever he needs a win. His winning percentage in those rulings is impressive, like .900. Shadow docket rulings are bare bones, no explanation for the ruling, no cases cited, no argument, the shadow docket ruling is a mere thumbs up or thumbs down.
Trump illegally fired tens of thousands of civil servants in violation of civil service law (arguably a crime for which he’s immune under Trump v. US.). A shadow docket ruling, in response to an “emergency” application by Trump — the emergency being Trump lost at the trial court and on appeal– put the question of these illegal firings on hold indefinitely. Those firings might be illegal, might be legal, but we’ll allow him to continue doing it until we have time to rule on the merits of the case.
Same deal for his day one executive order purporting to end birthright citizenship. The legal issue is not complex — the Constitution may not be changed by a scrawled Sharpie signature on an order written for the president by someone who hates immigrants and their children. But, for the meantime, pursuant to an unsigned one paragraph 6-3 shadow docket “decision”, taken without argument or any kind of briefing, the president may continue to act as though he has abolished birthright citizenship, until there can be a full argument on the merits. There is no argument on the merits that supports Trump’s illegal action, therefore, delay is the best the 6-3 majority can provide for Trump until an actual police state, and network of private “detention centers” can presumably be put into place.
The most recent 6-3 shadow docket ruling, in McMahon v. New York, allowing Trump to finish dismantling the Department of Education, is a grotesque example of Federalist Society methodology. You work backwards from the conclusion you want, focusing on technicalities, rather than the actual merits of the case or anything that would constitute a true emergency. Fill in the blanks as needed, ignore inconvenient facts, Supreme Court precedents, cite specious authorities (like the 17th century witch burner Alito cited over and over in Dobbs as the “authority” for criminalizing abortion rights [2]) glibly distinguish between substance and procedure and pull new “legal theories” out of far right “think tanks” who act as amicus curae, friends of the court.
Ignore law, and the Constitution, whenever necessary and create binding new law (see Trump v. US., Citizens United, Shelby County v. Holder, etc.) derived from the mystically divined “original intent” of the wealthy slaveholders, and other wealthy non-slaveholding white men, who compromised to come up with our constitution-based system of law. Ignore any constitutional amendments that were not part of the “original intent of the Framers” four score and seven years before the Civil War ended.
McMahon v. New York, the case brought in the name of Linda McMahon, the professional wrestling magnate/generous Trump donor who Trump appointed to dismantle the Department of Education, to allow her to continue gutting the Department of Education (most of its funding goes to poor and disabled students) was lost at the trial court level, where a hold on mass firings was imposed and that stay was affirmed by the appeals court. Time for an emergency application to the rocket docket!
Note the cunning of the unappealable Federalist Society Six. They decline to rule if the president has the power to order the gutting of a Congressionally authorized agency. They rule instead, in an unsigned one paragraph shadow docket ruling, that the practice may continue in the meantime, until they get a chance to hear arguments and rule on the merits of the case. Only Sonia Sotomayor’s dissent sheds any light into the dark, ominous shadow of the 6-3 ruling by the lockstep MAGA majority:
Justice Sonia Sotomayor did offer a sharp dissent, saying the decision is “indefensible” and that “it hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.”
In a press release, U.S. Education Secretary Linda McMahon said, “While today’s ruling is a significant win for students and families, it is a shame that the highest court in the land had to step in to allow President Trump to advance the reforms Americans elected him to deliver using the authorities granted to him by the U.S. Constitution.” source
Because Linda McMahon is a lying, unqualified political hack/Trump megadonor attached, remora-like, to Trump’s underside, let me give Justice Sotomayor the last word on this:
In her dissent, Sotomayor emphasized that, until this year, “Presidents have recognized they lack the unilateral authority to eradicate a Department that Congress has tasked with fulfilling statutory duties.” But President Donald Trump, she said, “has made clear that he intends to close the Department without Congress’s involvement.”
In its briefs at the Supreme Court, Sotomayor continued, “the Government does not defend the lawfulness of its actions” but instead “presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief” – none of which, she said, “justifies this Court’s intervention.”
Delay is the primary legal weapon Trump has used throughout his long career as America’s most prolific vexatious litigant/serial scofflaw. If he can get a long enough delay, that generally amounts to a victory. He has evaded legal responsibility for an impressive list of immoral and criminal acts committed over the ugly course of his long, miserable, highly parasitic life.
Right before cynical, defiant, crying, conspiracy theory spouting, self-pitying right-wing partisan Boof Kavanaugh was confirmed for his lifetime seat on the Supreme Court, days after the American Jesuits called for him to gracefully step down in the face of credible allegations of his unfitness for the Supreme Court, I did a little research on the Jesuits. Kavanaugh had gone to an elite, very expensive, ivy league prep school down the street from my aunt and uncle’s place in Maryland. I’d passed its majestic gates and seen its enormous lawn many times on visits to my relatives. Georgetown Prep is run by Jesuits. I visited their website and learned that the heart of Jesuit teaching is that the godly in us, when it recognizes the godly in another person, is the basis for the deepest love and understanding between people. This is what the Jesuits teach their students, to reach for the godly in everyone you meet.
I mentioned this beautiful idea to a Catholic friend who grunted before gently castigating my naivete. “Read the history of the Jesuits,” he said. The Jesuits were founded in Spain as “defenders of the faith”. They were the fanatical lawyers for the Spanish Inquisition who used learned, convoluted Biblical reasoning to give the green light to Inquisitors to torture heretics in the name of Jesus Christ, essentially arguing that God and His son Jesus love the agonized screams of heretics as they are burned alive. And why wouldn’t They?
[1] From The Calhoun Institute:
The Great Nullifier was dead. A man of enormous ability, Calhoun was, and perhaps still is, South Carolina’s most distinguished son. One cannot help but think that had he devoted his political skills to preserving the Union, rather than championing “state’s rights” and slavery, he would have realized his presidential ambitions and, vastly more important, spared his beloved South and the nation the horrors of civil war.
[2] from ProPublica:
Sir Matthew Hale, a 17th-century jurist who conceived the notion that husbands can’t be prosecuted for raping their wives, who sentenced women to death as “witches,” and whose misogyny stood out even in his time.
Oh, yeah:
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