Local opinion: The ghost of Justice Antonin Scalia

Can a President defy the federal courts — even a SCOTUS decision and order?

“The general practice”, the Trump lawyer told the Supreme Court, is to “respect those precedents,” but not always — referring to whether an appellate court decision and order are binding on the President. Translated — “only when we agree.” Whispering in Trump’s lawyer’s ear was the ghost of Justice Antonin Scalia.

Defy a SCOTUS order? “Of course,” if the President is an autocrat. What if SCOTUS created the autocrat? Then the Court, paradoxically, created the basis for its own demise. By arrogating to itself the power to totally immunize the President from any criminal responsibility, it created a monster — presidential autocracy. SCOTUS did not “shoot itself in the foot,” In Trump v. U.S., the Court shot itself in the gut, gutting its own power.

The simple but straightforward explanation. The marriage between the so-called Executive Power Clause of Article II of the Constitution and the now-deceased Justice Antonin Scalia’s United Executive theory.

The theory synthesized is that no person, agency, or entity with a federal executive enforcement function can operate outside the President’s executive authority. All federal executive functions whatsoever are subsumed under the authority of the President. Scalia’s outlier view of the scope of executive power is now the view of the SCOTUS majority.

A spiritual being, he was not, but the spirit of his having “been” is the disembodied ghost that hangs like a pall over us. The profound influence of Justice Antonin Scalia and his voice, in a lone but thunderous dissent over three decades ago, hangs like a pall over the Constitution and the rule of law. Scalia’s voice (later embraced by the voices of William Barr and the conservative Federalist Society) blessed and sanctified the outlier theory known as the theory of the “Unified Executive”. This theory of executive power conflicts with the power-limits design of the Constitution, which is that each branch “checks” the power of the other two branches. The theory “creates”, or at least “identifies” a constitutional paradox.

The Unified Executive theory of Scalia “is” the Trump second term. It’s Project 2025, the right-wing Heritage Foundation’s plan to unravel, dismantle, and remake the federal government, the full implementation of which is dictatorship.

The now infamous and unprecedented SCOTUS decision Trump v. U.S. was a Unified Executive theory decision. This disfavored theory among constitutional scholars, in this decision, conferred absolute immunity from criminal prosecution for “official acts” (and the ambiguous “perhaps-official or perhaps-non-official” acts).

James Madison, the Father of the Constitution; Antonin Scalia, the Father of the Unified Executive theory—now there’s a contrast. James Madison, father of a Constitution for the ages; Justice Neil Gorsuch, a Scalia disciple, called the SCOTUS decision in Trump v. U.S. “a decision for the ages.” Now there’s a contrast.

Scalia unraveled the power “paradox” created by the Founders and paved the way for a Trump autocracy. The paradox simply stated by Madison in Federalist #51 is this: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The paradox is that each of the three branches of government plays a role in the government being “obliged to control itself”, but any branch abdication of a role is a cession of its oversight function. Whenever the power balance between the three is upset and one branch moves outside its lane of power and fails to protect its assigned role, the design of the Constitution fails.

The culprit creating the paradox is a simply-worded “descriptive” provision of the Constitution in Article II. “The executive power shall be vested in a President of the the United States of America.”

Therein lies the paradox: If all executive branch oversight and accountability vested in the Congress and the federal courts require the enforcement teeth of the executive branch Department of Justice, and the President is made virtually immune from criminal prosecution, a President seeking to be an autocrat would have no incentive whatsoever to obey a federal court order. SCOTUS, noted founding father Alexander Hamilton, has no power of the “sword”. The Unified Executive theory says that only the “executive agencies” under the President can enforce SCOTUS orders—no “independent” DOJ. Trump now has carte blanche to disobey federal court orders.

But, the “supreme” irony” is that the “Supreme” Court unwittingly unleashed the power paradox upon itself. By giving itself, as the unilateral interpreter of the Constitution, the power to immunize and shield the President from investigation and prosecution (even post-presidency prosecution), SCOTUS also told Trump that the President could control the judicial function as relates to his own power.

If a President had no shame, no integrity, no humanity, no sense of social responsibility, no commitment to the Constitution and the Rule of Law — he could disobey any court order he didn’t like.

What can save us from this moment? Perhaps, instead of the thunderous voice of the ghost of Antonin Scalia in dissent, the “voice of the people,” in thunderous dissent can be heard. Thunder can announce life-giving rain — rain on the drought of responsibility and accountability, a reining-in of autocratic design, and an end to the reign of fear, chaos, and autocratic power that has descended upon us.