Chuck Schumer’s plan to create a constitutional crisis

President Joe Biden’s tirade against the Supreme Court last week was unbecoming of a president who claims to aspire to unifying statesmanship, but it was not genuinely threatening an independent judiciary in the United States. Besides, the lame-duck president offered no details to accompany his vague proposals, just antipathy toward the current court.
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But three days after Biden’s push, Senate Majority Leader Charles E. Schumer (N.Y.) released legislation that shows Democrats are thinking quite seriously and ruthlessly about how to vitiate the Supreme Court’s role as a meaningful actor in the constitutional order. “We have a very strong argument that Congress by statute can undo what the Supreme Court does,” said Schumer of his No Kings Act — which focuses on presidential immunity but offers a road map for turning the judiciary into the plaything of the legislature on any matter of constitutional controversy.

The legislation claims to overturn the Supreme Court’s decision in Trump v. United States (and then some) by declaring that a court overseeing the criminal prosecution of a president “may not consider” whether the charged conduct was within the president’s “conclusive or preclusive constitutional authority.” So: The Justice Department would have an explicit go-ahead to investigate and charge former presidents of the opposing party for presidential acts such as ordering military strikes overseas or reallocating funds by executive order, so long as prosecutors can find a criminal law broad enough to plausibly apply. Charged ex-presidents could not even raise their constitutional prerogatives as a defense.

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