6/5/2018—Two utterly unsurprising items in the news from yesterday. First, the President claims he can pardon himself. Here is the language of the Pardon Clause—"he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Not only is there no limit on the power, it is worded as if to remind us that the remedy for abuse is impeachment and removal. So, yes, he can pardon himself and then Congress should get rid of him.
The President is liable for state crimes, so he would have to shoot Comey in DC, in Giuliani’s weird hypothetical.
Second, the Supreme Court ruled in favor of the baker. As I told my Con Law class, Justice Gorsuch was appointed to protect religious believers and that is what he is going to do, which means a majority to do that.
The theme of hostility to religion, or a non-neutral application of the law is interesting. The baker was cited for refusing to make a generalized wedding cake. Three other bakers were not cited for refusing to make a cake with a gay-bashing message. Although decided under the free exercise principle of a non-neutral law, I believe the case would go the same way if there were any other basis to refuse to make a cake. In other words, the law recognizes free expression rights in bakers making cakes. So, how can you distinguish any opposition by any other baker?
As for the anti-religion comments, these are the same comments a lot of people now make about religion in the context of religious exemptions—they are routinely called a right to discriminate, rather than a right of conscience. So, the Court still has respect for religion. But a lot of Americans do not.
Religious believers should remember that they are not practicing live and let live here. There are plenty of people who would love to revere the Obergefell same-sex marriage case if they could. Time for a grand bargain?