In a 6–3 decision along ideological lines, the Supreme Court made clear that the President of the United States is above the law. In the dissent of Justice Sotomayor, she used the examples of a President ordering the death of a political rival, selling pardons, and organizing a military coup. For each of these acts, a President would now be immune. We no longer have a President who heads one of three co-equal branches of government; we have a King.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
“Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” — Sonia Sotomayor
While the focus has been on Donald Trump and the new powers he would have should he return to office, the Supreme Court may not have considered that Joe Biden is President. For the next six months, he will be King, with the power to violate laws with impunity as long as it can be deemed an official act. We know Biden believes Trump to be a clear and present danger. What steps might Biden take without the previous legal barriers to rid us of this menace?
I’m not proposing that Biden order Seal Team 6 to take out his opponent, as Trump lawyers have argued would be perfectly legal unless he was impeached first. But he does have a wide range of powers he could wield without concern for later prosecution, starting with imposing martial law.
Presidents already didn’t have to ask permission to invoke martial law; the only restraints were when considering possible consequences. Some constraints exist on what parts of the military a President may use. The Posse Comitatus Act of 1878 prevented the US Army from acting on American soil. The Air Force was added in 1956, with the Navy, Marines, and Space Force included in 2021.
In theory, a President has the National Guard and Coast Guard available, along with federalizing the state national guards. Some governors like Ron DeSantis of Florida have created their own armies that don’t answer to the federal government, so there could be an armed resistance to federal troops. However, given a president’s new immunity, without worry, he or she could suspend Habeus Corpus as President Lincoln did in 1863 and Ulysses Grant did in 1871. The President could access all the military forces if martial law were invoked. President Biden could go on a spree of politically based arrests without charging specific crimes, although I’m sure a charge could be concocted.
In the past, martial law has been used to crush Confederate sympathizers, secessionists, and the KKK. It’s been invoked by and against Mormons and used against labor unions during strikes. When martial law won’t do, the Insurrection Act may be invoked. Use of the Insurrection Act was threatened by Trump on several occasions while he was president. Should he get another opportunity, I don’t doubt he’d use it. The potential misuse of the Insurrection Act is a cause for concern and should be carefully considered.
Joe Biden has missed a few chances in his life to make positive change. As chairman of the Senate Judiciary Committee, he allowed the confirmation of Clarence Thomas because he wanted to get along with his Republican friends in the Senate. He refused to call three witnesses who would’ve supported Anita Hill’s claims about sexual harassment by Thomas. As vice president, Biden supported a crime bill that caused a spike in the mass incarceration of Black people. As president, he got infrastructure done but did little to support the safety net he promised to improve while running for president.
Now, through no actions of his own, the Supreme Court has given him the ability to act as King. It is no longer a question of what he can do but what he is willing to do to preserve the republic. While the goal of the Court was to protect a former president from prosecution and help him return to power. It also gave Joe Biden free rein to act as a monarch without repercussions. With the looming threat to democracy on the horizon should Donald Trump win the election. What is Biden willing to do now that he is King?
If he decides to arrest Trump and his cronies. Immune
If Biden cancels the election to remain in power. Immune
If Biden makes himself President for life. Immune. Immune, immune, immune.
Whether Biden is King for the next six months or four and a half years, he has the power to prevent a Trump presidency. The only question is, will he use kingly powers? There is no question the other man will.
This post originally appeared on Medium and is edited and republished with author's permission. Read more of William Spivey's work on Medium. And if you dig his words, buy the man a coffee.
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