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0 pointskristjansson1y ago0 comments

I don't think that's the dispositive part of the opinion for Sotomayor's hypo though. Roberts finds that the President enjoy absolute immunity for acts that can be construed as part of the "conclusive and preclusive authority" of the Presidency, and presumptive immunity for acts within the 'outer perimeter' of their authority. Furthermore:

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

So the hypo cannot be trivially resolved by treating the kill order as an unofficial act. Instead, for the president to be _criminally_ liable, I think (as not-a-lawyer) it has to be resolved by piercing 'presumptive immunity' for actions beyond the core powers. While there's a needle to thread, it feels disturbingly narrow.

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demosthanos1y ago

As noted by nostramo [0], Obama already set the precedent of ordering hits on US citizens. The answer to Sotomayor's concern here seems pretty obvious: if we're concerned that the President can order hits on US citizens for invalid reasons, then we need to be very clear in the laws that ordering hits on US citizens without due process is not within the President's official authority.

[0] https://news.ycombinator.com/item?id=40849378

kristjanssonOP1y ago

I don’t think this is a helpful comparison. A citizen in the service of an enemy engaged in war against his country does not enjoy the protections of an arbitrary citizen. We can rightly argue whether that theory wholly fits the facts of al-Awlaki, but it’s a very, very long bridge from that case to Sotomayor’s hypo

demosthanos1y ago

Not really—once you've crossed that bridge it's a short hop to the government arguing that the political rival was a terrorist who needed to be killed.

Due process is about validating the government's claims before allowing it to kill someone.

jhp1231y ago

The President's authority to command the armed forces comes directly from the Constitution, Congress can't pass a law to take that away.

salawat1y ago

Firther, Obama's AG argued successfully that due process was done; where the definition of due process became what the Executive Branch did.

I wouldn't have bought that; but alas, no one asked me.

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demosthanos1y ago

[0] https://news.ycombinator.com/item?id=40849378

kristjanssonOP1y ago

demosthanos1y ago

Not really—once you've crossed that bridge it's a short hop to the government arguing that the political rival was a terrorist who needed to be killed.

Due process is about validating the government's claims before allowing it to kill someone.

jhp1231y ago

The President's authority to command the armed forces comes directly from the Constitution, Congress can't pass a law to take that away.

salawat1y ago

Firther, Obama's AG argued successfully that due process was done; where the definition of due process became what the Executive Branch did.

I wouldn't have bought that; but alas, no one asked me.

j / k navigate · click thread line to collapse