Cup of Coffee: Jul 2, 2024

Good morning!

There was barely any baseball action last night, but that’s OK because most of us are preoccupied with the death of the American Experiment. I cover what little baseball news there is — including one item about serious allegations against a broadcaster which it seems no one else is picking up — but for the most part I’m preoccupied with Other Stuff today.

As for that Other Stuff: come Thursday we were about to celebrate 248 years without a king, but a Supreme Court consisting of a majority of Justices who were appointed by presidents who failed to win the popular vote effectively restored the monarchy yesterday. And not some hollow, powerless monarchy like The House of Windsor. This is a Plantagenet/Bourbon-style L'État, c'est moi kind of deal.

It’s bad. Worse than the stuff the Supreme Court did on Friday, which gave me no small amount of agita yesterday. Maybe if we talk through it here today we’ll feel better. If we do that’ll be false comfort because, as noted, it’s bad, but I suppose feeling better if only for a little while is good too.

And That Happened 

Only three games yesterday? Dang. Anyway, here are the scores. Here are the highlights:

Astros 3, Blue Jays 1: Hunter Brown, who has been on a tear of late, held the Jays scoreless on two hits over six innings. Jeremy Peña and Yordan Alvarez each homered, with the latter being a two-run shot in the top of the ninth to make a very close game not so close. The Astros have won 13 of their last 17 games.

Mets 9, Nationals 7: The bright spot for the Nationals: top prospect James Wood, who was acquired when Juan Soto was traded to San Diego, made his major league debut, hit a single, and drew a walk. Also fun: after blowing an early lead and then falling behind 3-2 in the sixth, Joey Meneses doubled in a run in the eighth to force extras. Extras were lit, with the Mets putting up a six-run tenth inning, which included a three-run homer from J.D. Martinez, an RBI triple from Francisco Alvarez, and a two-run homer from Jose Iglesias. The Nats didn’t lay down, plating four runs of their own, but four is less than six, ergo the Mets won.

Rockies 8, Brewers 7: Brenton Doyle homered twice and Charlie Blackmon went deep in regulation and Jake Cave hit a bases-loaded single past a five-man infield in the bottom of the 10th to give Colorado the win. The Rockies have won two in a row. I normally don’t mention when a team has won just two in a row, but it’s the first time they’ve done that in over a month.

The Daily Briefing

Brandon Nimmo had a slip-and-fall

Brandom Nimmo was out of last night’s Mets game because he fell in his hotel room early yesterday morning and got a gash on his head. Carlos Mendoza said that he was hospitalized until midday yesterday but that he doesn’t have a concussion.

I have no idea what actually happened here — Nimmo says he fainted — but I am a strong advocate of waiting around for the whole story when “fell in my hotel room” items pop up. There’s usually interesting context to such things is all I’m sayin’.

Broadcaster Craig Monroe on leave of absence after being accused of sexually assaulting a minor

Former Detroit Tigers outfielder Craig Monroe has been a broadcaster for the Tigers for several years. This year he has been the primary in-game analyst on Bally Sports Detroit broadcasts. He has been off the air for over a week, however, with Bally’s Sports and the Detroit Tigers saying on June 21 that Monroe is “addressing a personal matter and is not on the broadcast schedule. Any further questions should be directed to Craig.”

Meanwhile, over the weekend an Instagram post was found from June 11th in which a woman claimed that she was sexually assaulted by Monroe when she was a minor while Monroe stayed with her family during Spring Training in Florida. You can read the post here or see a screencap of it here, but warning, it contains graphic accusations of sexual assault allegedly perpetrated on a minor.

Other than the Bally’s/Tigers statement there has been radio silence from them and from Monroe, so it’s not 100% clear that Monroe’s leave of absence and the accusations against him are related. I’ll note, however, that the timing of the absence and the post is notable and that the “further questions should be directed to Craig” passage is not a typical part of such statements. It certainly suggests a distance between the parties which in turn suggests something Not Good, so it’s tempting to Do The Math here.

Obviously all we have at this point is an unsubstantiated allegation, but it’s an extremely serious one, and it’s one to keep an eye on.

Other Stuff

We now have kings

In 1977, former President Richard Nixon sat for a series of interviews with the journalist David Frost. During those interviews Nixon, recently pardoned, mounted a transparent and full-throated effort to explain away his crimes while in office in an effort to whitewash his infamy. Probably the most famous quote from those interviews came when Frost asked Nixon if, hypothetically, a president could do something illegal if it was done for the broader goodwill of the nation. Nixon replied: "Well, when the president does it, that means that it is not illegal.”

That quote had been mocked for over 40 years, and has stood as evidence of Nixon’s fundamentally corrupt mindset. As of yesterday morning, however, Nixon’s take on things is the official law of the land. That comes via the Supreme Court’s decision in Trump v. United States in which Chief Justice Roberts, writing for a 6-3 majority, held that former presidents (a) have absolute immunity for their official acts while they are in office; and (b) have presumptive immunity for their official acts once they’ve left office.

Notably, the ruling says presidents have no immunity for “unofficial acts” but it throws a bunch of things that seem pretty “unofficial”into the “official” pile. Things like pressuring the Justice Department to file bogus voter fraud lawsuits in an effort to create cover for Trump’s effort to grab power despite losing the 2020 election. Same with browbeating Mike Pence into negating the electoral college vote, which the court deems to be something that should not be scrutinized because, hey, presidents have to be able to talk to their vice presidents about things. Basically — and this is the KEY takeaway from this case — anything a president does via the normal mechanisms of his office, even if illegal or part of an overall illegal course of action, are non-prosecutable. So if he pursues wholly illegal ends -- like trying to have the results of a federal election set aside by and uses the powers of his office to make it happen -- he can't be prosecuted.

What’s more: prosecutors and judges are not to put two and two together, no matter what:

“Distinguishing the President’s official actions from his unofficial ones can be difficult. In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

Motives are the whole game, though, right? We want to stop a rogue chief executive from doing bad things under the color of his power. Under Roberts’ view, however, we cannot question anything a president does that, on the surface, looks like he’s acting under his own power. Under Roberts’ view, we can go after a president if he, say, robs a liquor store, but nothing a president does via the powers of his office can be illegal.

Launching a drone strike requires using the powers of a president’s office. It’s the power to conduct warfare and act as Commander in Chief. Launching it on the campaign offices of his opponent, however, would strongly suggest an illegal act (i.e. murder). But, per Roberts’ opinion, the legal system cannot question what the president’s motives were in bombing his political opponents. The president acted officially and he is thus immune from legal culpability.

That’s not just me being hyperbolic. Justice Sotomayor’s dissent makes the same observation:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

Giving the president absolute immunity for official acts and presuming that anything a former president did while in office is official and legal is patently insane. The Presidency is now exactly what the Founders feared the most and that which they worked hard to restrain via the checks and balances in the Constitution. What’s more, yesterday’s decision, combined with The Court’s other recent rulings which immunize or legitimize criminal and corrupt conduct, paves the way for dictatorship. If Trump — who has openly campaigned on establishing authoritarian rule — re-takes office, his power will be virtually unconstrained. As will any future president who wishes to follow in Trump’s corrupt footsteps.

And just because someone always asks me this when I deliver bad news, no, there is no fixing this. Not any time soon, as that would require a complete replacement of the current Supreme Court majority with one that understands how unhinged this is, and that’s a decades-long project, not a short term one. Unless of course Biden wants to launch a drone strike on the Supreme Court, which he can apparently do now. Short of that, the only short term fix is to elect people whom we are reasonably certain not to be ethical and/or moral monsters. Of course, given the sorts of people who are drawn to power politics, that’ll be easier said than done.

In the meantime, it’s clear that everything possible must be done to prevent Donald Trump from assuming the Presidency. Then we worry about the years beyond.

Bonus Question

Or, more of a thought experiment, I suppose, but here it is:

If, today, Joe Biden invoked his Commander in Chief powers to cancel the election due to security threats which he refuses to specify because they are classified, what legal mechanism would the country have to stop him? Because, honestly, I cannot think of one.

Sure, there’d be all kinds of practical consequences that could possibly forestall such an act. Maybe Congress would be appalled on a bipartisan basis and might try to impeach him, but (a) that would take loads of time and would have no guarantee of success; and (b) if it was Trump or another Republican in power doing it, Republicans in Congress would uniformly back him, as we’ve seen in the past. Maybe an armed revolution is fomented and the army takes its side but that’s not exactly a neat and efficient resolution to a crisis

What there is not, however, is any strictly legal basis that I can think of that would immediately head off such a thing via a simple act of one branch of government checking another while remaining legally consistent with the Trump v. United States ruling. To get there, a judge would have to ignore or work around it or read in some exception to it that does not exist in the Roberts opinion.

A strong, functional democracy should have mechanisms in place to rein-in an out-of-control chief executive. Ours, thanks to both yesterday’s opinion and no small amount of erosion of checks on presidential power over time, has no such ability to do that. It would depend on ad-hoc measures which may or may not be pursued depending on whether or not those in a position to pursue them are interested in doing so. I don’t know about you, but I’m pretty sure that’s not how things are supposed to work.

Here’s a possible answer to that question 

I tweeted the above hypothetical yesterday and it turns out that Cup of Coffee subscriber — and, more importantly, attorney and law professor — Tony Ghiotto wrote a detailed law review article about this sort of thing two years ago. The title is "The Presidential Coup.” You should read it all if this is a topic that interests you, but I’ll skip to the conclusion:

This Article began with a simple question—what stops the President from using the military power at his disposal from effectuating a presidential coup? It ends with an even simpler answer: nothing. The military now serves as a “loaded weapon” for the President to use at his will with little formal structural checks. Congress has acquiesced in this authority by delegating broad powers to the President, which in turn the judiciary has blessed through an abdication of its review authority. Any President may manufacture an emergency, insurrection, or national security threat and then rely on congressionally authorized and judicially recognized powers to use the military to quell any threat . . .

. . . To protect against a future malevolent President who finally fires the loaded weapon at his disposal, there must be real and tangible reform, predicated upon restoring both the formal and informal checks. Should the United States fail to establish lasting reforms—independent of the personality of the individual in the White House—the real possibility of a presidential coup will only increase, leading to a true constitutional crisis.

As Ghiotto writes, the Biden administration has given us something of a “return to democratic normalcy” feeling, but (a) Trump showed us where the weak spots of our democracy lie; (b) Congressional Republicans and the conservative majority of the current Supreme Court has validated and augmented Trump’s power grabs in many important ways; and (c) there now exists a template by which either Trump or future like-minded presidents can act to exploit democracy’s weak spots and, if they so choose, execute a presidential coup.

Someone will, inevitably, set out to execute such a coup. Let no one say we were not warned.

Federal regulations are in greater danger than I believed yesterday

Yesterday I wrote a lot about the hamstringing of the federal regulatory process due to Friday’s decision in Loper. In it I argued that, slowly, over time, businesses and anti-government public officials would work to degrade our regulatory framework by challenging any new regulation that comes down the pike. I assumed it’d be that sort of gradual process of degradation because Justice Roberts, in issuing the ruling, said that Loper was not retroactive and that past regulatory decisions were safe from challenge.

What a difference a weekend makes.

I say that because, in addition to the presidential immunity thing, yesterday morning the Supreme Court issued a decision in the case of Corner Post v. Federal Reserve. Per Justice Barrett’s opinion in that case, people and businesses can now challenge administrative regulations whenever they want, statute of limitations be damned. The decision accomplishes this by holding that the default six-year statute of limitations that is normally applicable to suits against the United States does not run once a regulation is finalized, as has long been the law. Rather, it will begin to run only when a plaintiff is injured by the action of an administrative agency.

While that may seem reasonable based on a casual read, in practice it means that there is never any finality with a regulation. A new business can be founded tomorrow and challenge a regulation that was passed a two decades ago and under which all other businesses subject to it have abided for ages. There is no expectation on the part of a new business to take the existing regulatory framework into account when it starts up. It can just sue saying “hey, this rule sucks and harms me” no matter how long it’s been there. It means that, functionally speaking, there is no longer any statute of limitations with respect to challenging a ruling. It will mean that basically every agency will be under a siege of constant litigation filed by either new actors or old ones who create Trojan Horse/Potemkin entities to go after old regulations that everyone presumed had long been settled, pretending that they were JUST NOW impacted by the rule for the first time.

All of which means that Justice Roberts was lying on Friday when he said the thousands upon thousands of rules and administrative cases under Chevron were still "good law." They're not good law anymore, not really, since anybody can sue, years after the fact. And to get a court, rather than an agency, thanks to Loper, to reconsider. That, in turn, will work to destabilize markets which rely on certainty regarding the federal regulatory landscape, among other things, for their proper and efficient functioning.

As Justice Jackson said in her dissent:

"At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government."

Which, as I said yesterday, has long been the objective of the greater conservative project. So great job, folks.

Have a great day everyone.

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