RIP U.S. democracy?

In its last decision of the year, the U.S. Supreme Court decided that a president has “immunity” for any “official” acts as president. 

According to the majority opinion in Trump v. the United States, written by Chief Justice John Roberts, “The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” 

There is a lot of deserved outrage at this decision. Liberals have decried the ruling as making the president a king. 

But this “denunciation of tyrants” is just “brass fronted impudence” to borrow Frederick Douglass' term in his anti-slavery speech to New York abolitionists celebrating July 4th. 

In her dissent, Associate Justice Ketanji Brown Jackson warned that ruling gives a president who orders the assassination of opponents or attempts an unsuccessful coup “has a fair shot at getting immunity.” The president, she concluded, would “become a law unto himself.” 

But she’s too late. Presidents have long been immune from prosecution for abusing their power from the beginning. 

One of the main reasons is that Article II of the Constitution does not specify the limits to the president’s powers, in effect allowing presidents to decide which those are.  

Presidents have used the military against U.S. citizens and invaded other countries without a declaration of war. George Washington not only launched the Battle of Wabash River to steal more land from native nations and then invented “executive privilege” to thwart the House’s investigation in 1792. 

Presidents imprisoned, assassinated and tortured their enemies and used the military and courts to break strikes. Every president has colluded with the rich by allowing corporate crime and serving as cheap overseas salesmen of U.S. made goods such as weapons and nuclear power plants. Today, President Biden is arming Israel to carry out genocide in Gaza. 

No president has yet been removed by impeachment, banned for office and prosecuted, which is allowed under Article I, Section 3, Clause 7 of the Constitution. Prosecution is now in doubt because of the Roberts court’s decision. 

Even when presidents have been caught in the act, they get off without a scratch of accountability. That’s what happened when the pro-slavery Andrew Johnson pardoned former Confederate leaders. Johnson narrowly escaped being removed by impeachment in the Senate. 

Trump was the first president ever impeached twice although he was not removed. He was also the first to be convicted of a crime and now it seems like he’ll get away with all he has been charged with. 

Some presidents even admit to their crimes and are not even punished with a slap on the wrist. George W. Bush admitted to authorizing torture and Bill Clinton admitted to wrecking Haiti’s ability to grow its own food. 

So when Trump declares admits he will be a dictator on day one, all the hand wringing about the president as a king or the end of “democracy” are just so much more “brass fronted impudence.” 

There has been a bipartisan consensus that the president is above the law from day one. 

Next time you’re visiting Congress, look up at the fresco painted on the rotunda ceiling. The 1865 work, “The Apotheosis of Washington,” which my students and I study, shows the president literally floating in heaven surrounded by angels and Greek gods.   

In Trump v. the United States, the majority enshrined the fresco’s image of the president as a god into precedent, writing “When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions.” 

So much for checks and balances. Congress has long been symbolically overlorded from above by the godlike president. 

The framers of the Constitution designed the presidency as an “elected king” by creating the un-elected electoral college to select it. Until the 22nd Amendment in 1951 limited the presidency to two terms and up to two years of previous president’s unfinished term, a president could serve an unlimited number of terms.  

But even Alexander Hamilton, who proposed an absolute monarch, said that presidents can be prosecuted in Federalist Paper No. 69. 

In her dissent, Associate Justice Sonia Sotomayor expressed “fear” at the implications of the majority’s opinion: “If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.” 

Her court colleague, Jackson called it “a five-alarm fire that threatens to consume democratic self-governance.” 

But before we mourn the death of democracy, we should first ask, as I do on these pages and in my book “We the Elites: Why the US Constitution Serves the Few,” if we’ve ever had one for anyone other than the economic elites  

There cannot be a RIP for a democracy we’ve never had. It was not a democracy during or after slavery or for immigrants, Native Americans or other groups living under systemic racism except for those few allowed to join the elites. There is no democracy for workers in the capitalist economy.  

This ruling only makes obvious what has been there all along.  

It also makes clear that the last remaining line of defense against dictatorship is our organized power as workers.  

Robert Ovetz is author of the forthcoming book “Rebels for the System: Nonprofits, Capitalism and the Workers Movement” (Haymarket Press 2025). He is also the author of “When Workers Shot Back” and “We the Elites: Why the US Constitution Serves the Few” and editor of two other books. Follow him at @OvetzRobert.