This week, in a 6–3 decision, the Supreme Court issued an opinion that appears to have the effect of fully legally immunizing the current and any future chief executive from giving exactly the kind of order then‐Defense Secretary Mark Esper said then‐President Trump tried to give during the 2020 summer Black Lives Matter protests. This is Esper discussing that incident with Norah O’Donnell of CBS News just two years ago:
As the dissents written by Justices Jackson and Sotomayor (joined by Justice Kagan) have already received extensive coverage in multiple outlets, I see no reason to rehash them here. Suffice it to say that I share every objection and concern they raised.
I will offer this one additional observation: perhaps letting a previous US president conduct a lethal, due process‐free drone strike on an American citizen overseas (admittedly a bad actor but still a citizen of this country) was an incredibly bad precedent to just let slide.
The question for the rest of us is this: Should any US president order American troops into the streets with “shoot to kill” orders regarding those peacefully protesting a given administration’s policies, what are supporters of a constitutional republic prepared to do in response?
