By Matt Ford

Copyright newrepublic

Roberts’s misconception, to put it mildly, comes from relying on what the framers said over what they actually did. The framers indeed created a presidency to address one of the principal defects of the Articles of Confederation. But they also created a much more powerful Congress under the Constitution than had existed under the Confederation. For the first time, the nation’s legislature could raise taxes, fund armies and navies, regulate commerce, and establish courts. It can even remove presidents and Supreme Court justices from office.

In addition to weakening Congress, the Roberts court has laid the groundwork for an authoritarian presidency. Its ruling in Trump v. United States last year, where the court created the doctrine of “presidential immunity” out of thin air, allows presidents to commit a wide range of crimes without fear of future prosecution. The 6–3 ruling concluded that presidents should have “presumptive immunity” for their official acts in general. For acts that fall within the presidency’s “core constitutional powers,” like issuing pardons or commanding the military, presidents now enjoy absolute immunity.

There is no constitutional basis whatsoever for that framework, or for the concept of “presidential immunity” in general. The Constitution itself only explicitly gives immunity to members of Congress in certain circumstances, such as travel to and from the Capitol and when participating in speeches and debates. The courts have also long recognized judicial immunity as an irreducible feature of the Anglo-American legal system. Presidential immunity, on the other hand, did not exist until Donald Trump asked for it and the Roberts court gave it to him.