Other voices: Presidential immunity must have clearer limits

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Chief Justice John Roberts declared emphatically that “the President is not above the law” in his majority opinion for last week’s sweeping presidential immunity decision. And yet the U.S. Supreme Court’s 6-3 ruling does place the nation’s chief executive above the law and protect the office from criminal prosecution in certain circumstances.

While the decision is not the blanket shield that many say would make a president a king or dictator, it goes considerably too far in excusing the holder of the executive office from accountability.

The ruling creates absolute immunity for a president carrying out the core constitutional duties of the office — what are considered “official acts” — including powers ascribed to a unitary executive in the Constitution, such as granting pardons, hosting foreign ambassadors and engaging in foreign relations.

The decision also creates essentially two lower classes of presidential acts — those considered within the outer perimeter of official responsibilities of the office, from which he has presumptive immunity, and those considered entirely private, for which there is no immunity.

We support the instinct of the court to preserve the critical separation of powers and protect a president from having his constitutional authority marginalized by a barrage of lawsuits — or by the fear of them.

But it goes against American values to offer such complete immunity even when carrying out core constitutional functions.

The result is not terribly surprising considering five of the six conservative justices who joined the majority opinion all worked extensively for previous presidents in the executive branch of government.

But codifying that a president can block an investigation or launch politically motivated investigations without cause or fear of accountability raises the likelihood a president could engage in illegal activity — as former President Donald Trump is accused of in the case that prompted the court’s review.

Former President Gerald Ford’s 1974 pardon of predecessor Richard Nixon, for example, would have been unnecessary under this ruling because Nixon presumably would have been absolutely immune from prosecution for the obstruction of justice allegation that compelled his resignation after he conspired to thwart the investigation of the Watergate break-in.

Presidents can still be prosecuted for some criminal acts, although it will be much more difficult to investigate those acts within the office.

Justice Amy Coney Barrett’s concurrence notes nothing in the Constitution insulates a president from criminal liability for their official acts, although any attempt to charge a president could always face a constitutional challenge.

That is a measured approach and one that should have been adopted in the majority’s opinion. Better yet would have been more unanimity from the court on such an impactful decision.

Legal scholars are divided on how sweeping the protections are, which is reflected in the justices’ individual commentary.

In her dissent from the majority opinion, Justice Sonya Sotomayor took one extreme, arguing the decision enables a president to be emboldened to take a plethora of actions with “evil ends,” such as bribes or assassinations.

Barrett, in her concurrence, sought to calm fears that prosecution — including specific charges against Trump for pressuring state electors in Michigan and elsewhere to overturn election results — would be thrown out.

Notably, the court remanded most of the charges against Trump back to lower courts for evidentiary processing, a clear indication the ruling is not a blanket protection for anything a president might do.

There is a possibility that some of the ambiguities will gain clarity as cases against Trump move through the legal process.

While we agree with Roberts that the ruling should not allow the president to get away with anything, there’s a clear danger that it allows current and future presidents to get away with too much.

— The Detroit News

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Spectacular summer menu includes easier clam chowder

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We’re on a high with cooking at my house. Pretty much everything we’re eating is from one farmers’ market or another, because glorious summer produce is upon us. It’s heavenly. The fresh, fully formed flavor of ripe, in-season fruits and vegetables makes cooking exciting — and easier.

Take, for example, hothouse tomatoes. In winter, they require a fair amount of intervention to taste like much, whereas ripe summer tomatoes need little more than a sprinkle of salt and a splash of extra-virgin olive oil.

It needn’t be as simple as that, but the summer first course here isn’t much more complicated. It takes a cue from bruschetta and panzanella, both Italian favorites that feature tomatoes, bread, garlic, basil and oil.

In this variation on the theme, a multicolored mix of well-marinated cherry tomatoes are served spooned over toasted sourdough bread to catch all the delicious juices. The key is, after dressing them, to let the halved cherry tomatoes sit for half an hour or so, to meld with the olive oil, red wine vinegar, salt and garlic. Of course, these marinated tomatoes could also be tossed with greens for an easy salad or spooned over grilled fish.

For a main course, I wanted something akin to clam chowder.

Inspired by New England-style white chowders, made with milk and potatoes, it’s more of a dinner stew than a soup. Fairly easy to put together, it all cooks in one pot, with various ingredients added along the way. Start with sautéed onions and celery, building a savory white sauce thickened with a touch of flour. Sliced potatoes go in next, followed by sweet corn and a few clams.

When the clams have opened, seasoned chunks of cod are added to finish the stew. It’s nice if some of the fish stays firm and some breaks up a bit.

Checking the seasoning, I pronounced my chowder delicious but a touch bland. So, to add spark, I finished it with grated lemon zest, slivers of serrano chile and lots of chopped dill and chives, which supply a necessary zing to the mild, creamy base.

You can prepare the chowder up to two hours in advance and reheat it gently just before serving, to avoid any last-minute rushing.

I always say fruit — whether a bowl of sweet berries or a wedge of watermelon — makes the best dessert. But stone fruits are a real treat, especially nectarines, and a little lime syrup makes them into something truly special, adding sweetness and a pronounced lime flavor. (A squeeze of fresh lime juice, though, is necessary to provide the acidity you want.)

Serve the fruit well chilled, for an inordinately refreshing finish to a meal on a hot summer day.

Marinated Cherry Tomatoes on Toast

Marinated cherry tomatoes on toast. Letting the tomatoes sit for a half-hour or so lets them meld with the garlicky red-wine dressing. Food styled by Simon Andrews. (David Malosh/The New York Times)

By David Tanis

Taking a cue from Italian bruschetta and Spanish pan con tomate, these easy marinated cherry tomatoes go with everything. Toss them over greens for a summery salad or spoon them over grilled fish. Or serve them as they are here, on toasted bread, a great vehicle for catching all the delicious juices.

Yield: 6 servings

Total time: 10 minutes, plus 30 minutes’ marinating

INGREDIENTS

1 1/2 pounds cherry tomatoes, preferably a mix of different colors

Salt and pepper

3 tablespoons extra-virgin olive oil

2 tablespoons red wine vinegar

1 large garlic clove, grated

Pinch of red-pepper flakes

6 basil leaves, plus more for garnish

6 (3/4-inch-thick) slices sourdough bread

DIRECTIONS

1. Cut cherry tomatoes in half and place in a salad bowl. Season well with salt and pepper.

2. Add olive oil, vinegar, garlic, red-pepper flakes and basil. Toss well. Let sit at room temperature for about 30 minutes.

3. To serve, toast the bread and place on a platter or individual plates. Spoon cherry tomatoes over toast, dividing evenly among slices, and drizzle over any remaining juices from bowl. Garnish with more basil leaves.

Summer Chowder With Cod and Clams

Summer chowder with cod and clams. A generous amount of lemon zest, herbs and chile before serving lend verve to this chowder. Food styled by Simon Andrews. (David Malosh/The New York Times)

By David Tanis

Based on East Coast white chowder, made with milk and potatoes, but more of a dinner stew than a soup. Lemon zest and slivers of serrano chile add spark to the mild creamy base. Prepare the chowder up to two hours in advance and reheat it gently just before serving, to avoid any last-minute rushing.

Yield: 6 servings

Total time: 1 hour

INGREDIENTS

1 pound cod or other white fish, cut into 2-inch chunks

Salt and pepper

2 tablespoons extra-virgin olive oil

1 teaspoon chopped dill, plus 3 tablespoons chopped dill for garnish

3 tablespoons unsalted butter

1 yellow onion, diced small (about 2 cups)

1/2 cup diced celery (2 small ribs)

3 tablespoons all-purpose flour

6 cups whole milk

1 small dried bay leaf

Pinch of ground cayenne

1 1/2 pounds yellow-fleshed potatoes (preferably on the smaller side), peeled and sliced 1/4-inch-thick

1 1/2 cups corn kernels (from 2 ears)

12 littleneck clams, rinsed

Zest of 1 lemon

1 serrano chile, thinly sliced

2 tablespoons thinly sliced chives, for garnish

DIRECTIONS

1. Place fish in a medium bowl. Season with salt and pepper. Add olive oil and 1 teaspoon chopped dill. Toss to coat and set aside.

2. Melt butter in a large heavy-bottomed pot or Dutch oven over medium-high heat. Add onion and celery, season with salt and pepper, and cook, stirring, until onions are softened, 5 to 8 minutes. Lower heat as necessary to keep onions from browning.

3. Over medium-high heat, sprinkle onion-celery mixture with flour and stir to coat well. Add milk 1 cup at a time, stirring frequently to prevent scorching as it thickens, bringing to a simmer between additions, until all 6 cups have been incorporated. (Add more milk as needed to thin. The consistency should be like a thin milkshake.) Add bay leaf and cayenne. Taste and add salt, if necessary.

4. Lower heat to medium and add potatoes. Cook, stirring frequently, until tender, about 10 minutes.

5. Add corn and clams, and cook until clams begin to open, about 5 minutes. Add fish, stir well, and adjust heat to maintain a low simmer. Cook for about 10 minutes, until fish is opaque. Stir in lemon zest.

6. To serve, divide fish and sauce among 6 soup bowls, with 2 clams per bowl. Add a few slivers of serrano chile to each bowl and sprinkle generously with chopped dill and chives.

Nectarines in Lime Syrup

Nectarines in lime syrup. Ripe nectarines need little adornment, but a simple lime syrup enhances their natural charms. Food styled by Simon Andrews. (David Malosh/The New York Times)

By David Tanis

Fruit — whether a bowl of sweet berries or a wedge of watermelon — makes the best dessert, but stone fruits are a real treat, especially nectarines. Sliced and dressed in a lime syrup, served chilled as they are here, they’re a refreshing, sophisticated and shockingly simple end to a meal.

Yield: 4 to 6 servings

Total time: 20 minutes, plus at least 1 1/2 hours’ cooling and chilling

INGREDIENTS

1/2 cup fresh lime juice (from 4 large limes)

1 cup granulated sugar

2 tablespoons orange liqueur

4 to 6 ripe nectarines

Lime wedges, for garnish

DIRECTIONS

1. In a small stainless-steel saucepan, combine lime juice, sugar and 1/2 cup water. Bring to a boil over medium-high heat, stirring to dissolve. Turn heat to low and simmer for 5 minutes. Cool completely, then add orange liqueur.

2. Slice nectarines (no need to peel) about 1/2-inch thick and place in a medium bowl. Add 1/2 cup lime syrup and toss to coat. Chill well, about 1 hour. (Refrigerate leftover syrup for up to 1 month.)

3. To serve, spoon slices into dessert glasses or shallow bowls. Garnish with lime wedges, for a final squirt of fresh lime at the table.

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Toby Proctor: Are you tired of our toxic two-party system?

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Imagine this: A general election with no negative campaigning and four or five viable candidates (regardless of party affiliation) competing based on their own personal ideas and actions — not simply their level of obstruction or how well they demonize their opponents. In this reformed election process, the candidate with the best ideas and the broadest appeal will win. The result: The exhausted majority will finally be well-represented again.

What is the “exhausted majority,” you ask? Are you tired of our toxic, two-party political system? Are you a member of one of our two major parties who no longer feels well-represented? Or, like me, are you an independent/unaffiliated, politically homeless voter? If you answered “yes” to any of these questions, welcome to the exhausted majority!

Yes, I’m exhausted by modern American politics. Most of the time, it feels like a middle-school shouting match. With all the fear, outrage and division that’s being sold to us every day, sometimes the easiest thing to do is to turn off the TV and social media completely. Many people have done this and might be enjoying a higher quality of life.

Here’s the problem: Many of these exhausted, reasonable Americans are exactly the voices we need to hear the most in our dangerously divided public arena. But what can be done? Will things ever get any better, or are we entering the final phase of what one well-respected political author has called “The Two-Party Doom Loop”?

As a proud Navy veteran, I’m choosing to channel my frustration with our dysfunctional system into wise action. I’m pushing past my personal exhaustion to answer the call of duty, one more time, by joining Veterans for All Voters and supporting its noble and urgent mission of making our system less toxic and more competitive by mobilizing veterans (and their supporters) to advocate for the most powerful election innovations.

Through election innovations such as open, nonpartisan primary elections where ranked-choice voting is used to select a winner in the general election, we can forge a more competitive American democracy where everyday citizens are incentivized and excited to participate. Don’t you think it is unfair that 44 percent of registered voters in Connecticut, my home state, are not allowed to participate in taxpayer-funded primaries? That results in 44 percent of Connecticut voters having zero input as to which candidates are on the November general ballot. That can’t be true representative democracy.

Veterans for All Voters believes that the best way to make our government, and our leaders, more accountable is through better, more competitive elections. In 2020, only 8 percent of eligible voters elected over 80 percent of our Congress. This is our “Primary Problem” and the primary reason why Congress is so ineffective and unaccountable. Our antiquated and unnecessarily partisan primary election system has led to many other systemic failures, from partisan gridlock to something even worse — actually rewarding toxic and divisive behavior.

Why, you ask, would anyone be excited to participate in our political process? Because, once we adopt these powerful election innovations we will no longer be stuck with the “lesser of two evil” choices in November. Under these new election systems, like the version already adopted by Alaska, we will have four or five viable candidates to choose from in each general election.

We can create this new, healthier and more competitive American democracy together. Please join Veterans for All Voters today and take part in our fight for responsible government and accountable politicians through open and competitive elections.

Let’s work together to save our democratic republic. Duty is calling, once again.

Toby Proctor, a Navy veteran, is a volunteer with Veterans for All Voters. He wrote this column for The Fulcrum, a nonprofit, nonpartisan news platform covering efforts to fix our governing systems.

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Stephen Mihm: Cigarette labels were bad. Social media labels would be worse

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This summer, Vivek Murthy, surgeon general of the United States, warned that the use of social media among adolescents has contributed to a surge in anxiety and depression. In a widely read op-ed, he argued that Congress should take action, forcing the social media giants to attach warning labels on their products in much the same ways that it did with cigarette makers.

This may sound like a good idea, but the history of cigarette labels suggests otherwise. That earlier effort at warning consumers underscores how such well-intentioned measures can easily end up serving the interests of the corporations they were meant to regulate.

In the 1950s, scientific consensus was finally coalescing around the dangers of tobacco as a series of studies — some conducted under the auspices of the nation’s Public Health Service — established a clear connection between smoking and lung cancer.

But the industry fought back, sowing doubt about the research and hiring doctors to argue that their products were safe. The turning point came in 1964, when a special committee appointed by President John F. Kennedy published a report that laid out an incontrovertible case that smoking was behind not only lung cancer, but a host of other ills.

The report gave regulators at the Federal Trade Commission a rationale to act. The agency, which regulated false or misleading product claims, argued that the tobacco companies would commit “an unfair or deceptive act” if they failed to disclose in advertising and on packaging that “cigarette smoking is dangerous to health and may cause death from cancer and other diseases.”

Lawyers advising the cigarette companies warned that the industry would soon be forced to accept some kind of labeling. In fact, a number of state legislatures soon started introducing bills that regulated the promotion of cigarettes. At the same time, some smokers who blamed the companies for cancer and other health issues started filing lawsuits. Confronted with these challenges, the tobacco industry shifted strategy.

In his account of this period, historian Allan Brandt has described how the tobacco industry turned the tables on its critics. “If the industry could not avoid government action,” Brandt writes, “it could ensure that … action was taken in their preferred venue: the U.S. Congress.”

The industry knew it had allies in Congress who might help dilute the impact of warning labels; tobacco lobbyists worked closely with them to draft relatively innocuous language that would appear on every package of cigarettes: “Smoking may be hazardous to your health.”

But as Brandt has demonstrated, the strategy of enlisting Congress went well beyond political alliances. The lawyers who conceived of this strategy also did so because federal legislation about warning labels would effectively preempt other ways of holding the companies responsible.

This strategy of preemption, Brandt observes, meant several things. First, if the tobacco companies could get Congress to take the lead on warning labels, it could essentially forbid individual states from doing the same. In practice, this tied the hands of progressive states who wanted to force companies to be more explicit about the risks of cigarettes.

At the same time, with Congress taking the lead, the tobacco companies simultaneously preempted the regulatory authority of government agencies; the final version of the legislation explicitly forbade the FTC from exercising any regulatory oversight over the cigarette makers.

Finally, the labels preempted potential lawsuits. As Brandt notes: “Among the many advantages of legislation requiring a label was that it allowed the industry to insist — in court if necessary — that claims against the companies for negligence and deception were now moot.” The proposed labels ensured that smokers had been warned. If they got lung cancer, it was their own fault.

The Federal Cigarette Labeling and Advertising Act of 1965 delivered everything that the tobacco industry wanted. It preserved the fiction that no scientific consensus existed — “smoking may be hazardous to your health” — while simultaneously thwarting federal regulators. Most importantly, it effectively stopped smokers from filing lawsuits against the companies.

This was well understood at the time. After the bill passed, the New York Times described the legislation as having protected “the economic health of the tobacco industry by freeing it of proper regulation.” In fact, a year later, rates of smoking, which briefly dipped after the 1964 report, had hit new all-time highs.

And while smoking has finally fallen out of fashion in recent years — due in part to the spread of vaping — warning labels, even graphic ones, seem to have had little effect. Instead, the warnings’ lasting impact has been tobacco companies’ ability to dodge scrutiny and responsibility for decades.

This sorry episode holds lessons for today. While scientists eventually reached an accepted consensus on the ills of smoking, no such agreement exists about the effects of social media. This means that any warning label will be provisional, tentative and ambiguous, much like the one crafted by the tobacco companies nearly 60 years ago. Once in place, such a label would almost certainly complicate efforts to hold the tech companies responsible via other avenues, including federal regulation, state laws and individual lawsuits.

Or to distill this into a package-size label: “Warning: Enlisting Congress to put ambiguous declarations of danger on products will achieve nothing while simultaneously shielding the companies responsible.”

Stephen Mihm, a professor of history at the University of Georgia, is coauthor of “Crisis Economics: A Crash Course in the Future of Finance.”

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