In the Supreme Court decision that former President Trump was allowed to commit crimes while he was in office, dissenting Justice Sonia Sotomayor warned that the ruling could have allowed Trump to escape prosecution if he had ordered “the Navy’s Seal Team 6 to assassinate a political rival.”
Senate Majority Leader Chuck Schumer (D-NY) plans to introduce legislation that seeks to neutralize it. His “No Kings Act” has 29 co-sponsors, all members of the Democratic caucus.
The bill would invoke a rarely used congressional power to shrink the Court’s authority to hear certain appeals. The idea is to prevent the Supreme Court from enforcing its Trump immunity decision by removing the Court’s jurisdiction over presidential prosecutions, reports Vox.
The bill declares that presidents, vice presidents, and former presidents and vice presidents “shall not be entitled to any form of immunity … from criminal prosecution for alleged violations of the criminal laws of the United States unless specified by Congress.”
In Trump v. United States, the Court’s six Republicans held that presidents and former presidents have broad immunity from criminal prosecution for illegal actions they engaged in using their authority as president. Among other things, the Republican justices concluded that the executive branch led by the president “has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.”
Schumer’s No Kings Act is the second major proposal by a high-ranking Democrat that targets the Court’s immunity decision. President Biden proposed a constitutional amendment to overturn Trump, and this amendment was endorsed by presumptive Democratic presidential nominee Kamala Harris.
The No Kings Act is ordinary legislation and doesn’t need to be ratified by three-quarters of the states like a constitutional amendment.
The bill is likely to trigger massive resistance from the same Republican justices responsible for the Trump decision if it actually becomes law, something that won't happen unless Democrats win both houses of Congress and the White House this November).
Although the Constitution permits Congress to make “exceptions” to the Court’s jurisdiction, the Supreme Court could still declare a law stripping away some of the justices’ authority unconstitutional.
Schumer’s bill is significant because it shows that Democrats are increasingly willing to play constitutional hardball against a Supreme Court dominated by Republicans. At least two of the Court’s six Republicans are only there because Senate Republicans engaged in hardball tactics to ensure that the Supreme Court would have a Republican majority.