The Runaway Car 🚙

Comer: I think the chances of Kamala Harris being asked to come in and testify increased significantly… I don't see how these pardons can stand up in a court of law pic.twitter.com/dINxBXYIr6

— Acyn (@Acyn) September 6, 2025

...the Trump administration has destroyed the presumption of regularity (except among the Sinister Six), and the Biden Administration didn’t.

Consider the question of an “emergency.” This is actually a provision of American law (in certain statutes), unlike “martial law” or “presidential immunity.” The first doesn’t exist in American law at all (the complete suspension of the rule of law), the latter exists as an ill-defined proposition that even Roberts shrugged off on the lower courts. (It exists, they say, but they can’t quite say where or when. It’s the Bigfoot of constitutional law.). Still, in the statutes that give POTUS emergency powers, the courts prefer not to define “emergency.” Too many contingencies, and the courts have to assume the POTUS is acting in good faith, or the government (Congress, President,  Courts) will fiddle while Rome burns. So generally, the courts refuse to engage. (This will be a key point of contention in the courts, especially between the lower courts and “We’re the Supreme Court, bitches!”)

Pardons are not that. The pardon power is basically absolute. There have been cases about pardons, but so far as I know (granted, not far), no pardon has ever been overturned. You might make the argument for a pardon granted for clearly corrupt purposes, but that would run into the immunity privilege (which is so ill defined), and it would be in court for years. A Democratic administration would just drop the appeal.

And if Biden’s pardons could be challenged, so could Trump’s. On the same grounds Comer is alleging, if not on better ones. Granted, the generous explanation is that Comer just wants to draw attention from Epstein; or he thinks this draws attention from Trump’s manic behavior (or the economy), and saves the midterms.

But it’s definitely a car he doesn’t want to catch, because he’ll wind up under the wheels. There’s a reason the Sinister Six are giving Trump what he wants on the shadow docket. They know they can’t slice the baloney so thin it has only one side. Procedural orders (rulings in injunctions, basically) can have consequences beyond the parties (Kavanaugh’s complaint; he wants them to, even when they don’t), but they are not final. Only final rulings can be real precedent. But final rulings make somebody responsible for issuing them, and can give real authority to parties that procedural orders do not.

In the birthright citizenship case, for example, the Court set new rules for nationwide injunctions (in the worst case possible). Recently they allowed an injunction to be national because the lower court certified a class, in line with their prior ruling. The Six are trying to protect Trump without inarguably writing final opinions that say: “Because it’s Trump.” Call it “plausible deniability.” So long as they aren’t really finally ruling for Trump because Trump, they can claim they are just calling balls and strikes. Because the minute they lose that, the Emperor is naked and they lose all credibility and authority. Right now it’s arguable that they have done so. Final rulings for Trump will upset so much precedent and centuries of legal reasoning they would remove all doubt. It would not be a “constitutional crisis,” it would be nuclear winter. (Again, arguably, this has already happened. But the Court is hiding behind the shadow docket, so…plausible deniability..)

So many cases are back in trial courts with no more emergency access to the Sinister Six. Those justices would like to tell the lower courts exactly what to do in each of those cases, but they can’t. Coney Barrett and Kavanaugh/Gorsuch have spoken in opinions and a book, but those are not final opinions establishing the law in particular cases. Like the immunity case, the Court is putting off that responsibility as long as possible. Part of this is the way the system works (it should). But the Sinister Six want to radically (at the root) change modern Constitutional law. Except that would require absolute authority; and they don’t have it. Neither can they actually work incrementally. It’s an all or nothing proposition.

And they’re realizing there is no exit. If they declare themselves the supreme legal authority, and damn the case law, they lose all authority unless a despot backs them with the full police/military force of the government. And at that point, there is no government.

I don’t think even this court wants to destroy the constitution in order to save it. So, like Comer, they’re quickly running out of options. Also like Comer, they don’t seem to know how to stop the car.