Rulings on presidential immunity and Idaho’s pro-life law

PAUL BUTLER, HOST: It’s Tuesday the 2nd of July, 2024.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Paul Butler.

NICK EICHER, HOST: And I’m Nick Eicher.

First up, Supreme Court decisions in cases about presidential immunity, and Idaho’s abortion law.

This is the busiest time of the year for our friend and colleague Mary Reichard, but, Mary, thanks for slogging through page after page of these monumental decisions. Obviously, let’s start first with the presidential immunity case.

MARY REICHARD: Right, this is the one everyone was waiting for.

The question was whether the court would weigh in on this: does the former president enjoy immunity from criminal prosecution for events following the 2020 election. The answer … it depends.

The indictment against President Trump alleged that he conspired to overturn the results. And the majority six justices agreed immunity attaches only as to “official acts.” It’s a novel question, and the lower courts here had not analyzed President Trump’s alleged conduct.

The high court’s opinion makes clear that a former president has absolute immunity for his core constitutional powers. He is also entitled to a presumption of immunity for official acts and none for unofficial acts.

I called up Daniel Suhr for some deeper analysis. He’s an attorney, court watcher, and writes for WORLD Opinions.

DANIEL SUHR: The bottom line is we're going to have to keep waiting, Mary. That this opinion really provides just a framework for some important legal questions, but it doesn't resolve the core question that I think the news headlines are focused on: what's next for President Trump? And the answer is that it's going to have to go back to the trial court for some fact finding.

Once the decision came down some headlines veered into hysteria: “Supreme Court Embraces Presidential Dictatorships” probably takes the cake. Yet, this opinion is predictable for a case of first impression: it takes time to apply the rule that presidents are immune from prosecution for some acts but not others.

SUHR: The reality is that we ask the President to do a lot of things simultaneously. That he is the head of state, he's the head of government, he is the head of his political party. He may be a candidate for reelection, and he's doing all of those jobs all in one human being when he's sitting in the Situation Room deciding the most important questions of war and peace.

That goes for any president, including President Barack Obama who cannot be charged for murder after he ordered drone strikes. Or President Biden for letting the southern border be overrun by the millions.

The Supreme Court was clear, too, that courts cannot inquire into the president’s motives while dividing official from unofficial conduct. To do so would invite mere allegations for political purposes. To take an example, in 1998 President Bill Clinton approved missile strikes in Afghanistan and Sudan, in the midst of the Lewinsky scandal.

SUHR: And the question is, was he doing it to distract from his own political problems? His affair that he was having? Well, were you doing that because they were a threat to the United States, or were you doing that to create a news story that would distract from Monica Lewinsky and impeachment?

One thing I noticed in the dissenting opinion by Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, seeming hyperbole, and not the customary respect for the majority. Sotomayor wrote that, “The president is now king, above the law” and ended “With fear for our democracy, I dissent.” And she did not write, “respectfully dissent,” as is the usual.

I asked Suhr about this.

SUHR: It’s also their responsibility to model the kind of healthy disagreement, respectful disagreement, that we need more of in our democracy. We hear all the time about the ethics of Justice Alito or the ethics of Justice Thomas. I'd love to hear more talk about the ethics of some of the other members of the court in modeling a respectful collegiality that gives the American people a positive example of being able to disagree without being disagreeable. We need more of that in our politics, not less.

In practical terms, this decision delays things. Aside from Trump's convictions in New York over record keeping, this and other prosecutions are likely put off past the election.

That’s good news for him, but…

SUHR: The bad news for President Trump and the American people is that process will play out beyond Election Day, right? This is going to continue to hang over his head. It's going to continue to hang over our politics, just like what happened in New York, just like what's happening in Georgia. Unfortunately, we're just not able to move on as a country from what happened.

For our second case today, we’ll return to last week’s decision in Moyle versus United States. Here, a law in Idaho criminalizes most abortions. The Biden administration brought a legal challenge to that state law, arguing it is preempted by a federal law called the Emergency Medical Treatment and Labor Act. It says hospitals that receive medicare funding must offer “necessary stabilizing treatment” to pregnant women in emergencies.

So the legal question was whether federal law preempts Idaho’s law protecting the unborn?

I called up a lawyer who filed a friend of the court brief in support of Idaho, John Eidsmoe. He’s senior counsel of the Foundation for Moral Law.

JOHN EIDSMOE: Neither a victory nor a defeat. The media has portrayed this as though now that abortions are taking place in Idaho, it's clearly a defeat for the pro life movement, but that's not what happened at all.

What happened was a DIG- dismissed as improvidently granted. The court split 3-3-3…with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch wanting to uphold Idaho law; with Justices Elena Kagan, Ketanji Brown-Jackson, and Sonia Sotomayor wanting to invalidate it; and Justices Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts preferring to send it back to federal district court on procedural grounds.

But what changed since the time the court accepted the case for review?

EIDSMOE: What they said was that the positions of both sides had evolved somewhat. The Federal was now willing to recognize that their statute does allow for physicians who have conscientious objections to abortion to not perform them. Idaho acknowledged that its law might allow abortions for the health of the mother in circumstances that were not life threatening, and since the positions of both sides evolved, the court said it needs to go back to the federal district court for a thorough trial on the merits.

Justices Alito and Jackson both wrote that they wouldn’t have dismissed the case … though for different reasons. And … cultural sidenote here: In Justice Jackson’s partial concurrence and partial dissent … she used the phrase “pregnant people” or “pregnant patients” in lieu of “pregnant woman.” No other justice did that.

That’s it for today. More tomorrow. Reporting for WORLD, I’m Mary Reichard.

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