> I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end?
A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.
The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...
Very much in the air and down to courts to decide, ordering the military around is certainly within the official acts but doing it on US soil not directly pursuant to external boundaries like the border generally wouldn't be.
Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.
Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees.
The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.
This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
> An old guard who had belief in the process going by it even when dealing with
To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
> Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence?
I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.
How is that different then any executive action before the ruling? Presidents attempt to do all sorts of shit and then a judge say no. Literally nothing changed the surprise was it wasn't a 9-0 ruling not anything in the ruling.
On the other hand, if Trump marches on Washington at the head of an army surely Biden can take him out with an airstrike. Extreme scenarios often lead to bad law.
That's what happens when the unitary Executive and the Commerce Clause expand to devour the entire constitution. If we wanted to reduce the expansiveness of executive power (the Bush Doctrine), Obama was given the mandate to do it, but instead went out of his way to codify the practices which a lot of people thought had been illegal.
To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.
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edit:
Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits
> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]
I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.