Say a judge dismisses an indictment of an accused murderer because the police didn’t have a proper search warrant. Then the accused murderer kills someone else. That could fall within the letter of “negligent homicide” laws, but the judge can’t be prosecuted for that because judges have absolute immunity for official acts.
Similarly, a red state prosecutor could have tried to prosecute Biden for something like negligent homicide on the theory that his opening of the boarder was a negligent act that resulted in deaths. Obviously you can’t do that, because the President has immunity for official acts. It would be completely insane if the President didn’t have immunity. President do lots of things which cause people to be killed, property to be destroyed, etc. You could prosecute those as crimes if you literally applied the criminal laws.
If the Executive isn’t bound to follow federal appropriations laws, there’s no principled reason why he should have to follow other federal laws. And as you show, the president has full criminal immunity as well.
What other laws are there that might limit his conduct? I’m of the understanding that where we are now is the only potential check on Presidents going forward is impeachment and removal from office. It’s a blunt instrument, but apparently there are no other applicable mechanisms.
The primary check on the President is elections, not “the law.” Secondarily, there’s impeachment, and Congress’s power of the purse. Those are the main checks on the executive.
We have this 20th century conception of “the rule of law,” where we imagine this neutral, independent “justice system” as the base layer on top of which the elected branches operate. Like the lowest level of an operating system kernel. But if you look at the debates at the constitutional convention, and read the federalist papers and anti-federalist papers, that’s not the system the founders actually created. The founders didn’t trust anyone to neutrally enforce the law. You won’t find anywhere in those primary sources where the founders envisioned some “rule of law” where private litigants use the court to micromanage executive policy.
Instead, what we have is a game of rock-paper-scissors, where no branch is assumed to be “independent” and no branch is a “base layer of the operating system.” Courts can declare the law, but can’t force the President to do something. But if the President doesn’t listen to the court, he can be voted out of office, or impeached, or Congress can withhold funding for the administration. That is a complete system of checks and balances as it is.
Marbury vs Madison established the judiciaries authority to review actions of the executive. That was in 1803.
Regarding rule of law, in that opinion:
> When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
Right, that's where this discussion started. What we are looking at right now is the erosion of that second piece, Congress's power of the purse. The Constitutional checks and balances (not the 20th-century stuff you detail) doesn't work as well without this key Article I power. I have not seen it explained under what principle this power of Congress has been arrogated instead to the Executive.
If he chooses to continue to ignore the law, the solution isn't the courts. It's the Second Amendment, which was added to the Bill of Rights as a check on exactly this (though the Founders intended for it to be exercised through the States' militias, not the citizens directly, based on the text of the first half of the amendment).
And, to be honest, I’m not really sure that a bunch of unorganized wingnuts that slobber all over their big-man toys are going to prevail over the National Guard, if the latter remain loyal to the President, and a lot of innocent lives will probably be lost due to militia incompetence.
