Proposed Amendment Would Plug the Hole Caused by ‘Trump v. U.S.’
. . . and would stop presidents from self-pardoning.
ON THURSDAY, REP. JOE MORELLE (D-N.Y.) introduced a constitutional amendment that would override the U.S. Supreme Court’s decision in Trump v. U.S., which manufactured blanket immunity for presidents who commit crimes using official power. The bill already has forty-nine cosponsors, including Rep. Jamie Raskin (D-Md.), himself a constitutional scholar who said about the Trump case that the majority “took a bulldozer to the democratic credo that no one—including presidents and former presidents—is above the law.”
The amendment should be ratified. Short of adding justices to the Supreme Court willing to reverse the 6–3 immunity decision, it’s the only way to save the country’s foundational charter from autocratic ruin.
Although a constitutional amendment sounds like a radical impossibility, it’s of course not without precedent. With over ten thousand amendments proposed since 1789, the document has been officially amended twenty-seven times—most recently in 1992 to freeze changes in congressional salaries until the next election. Killing the Court’s outrageous immunity decision should be the twenty-eighth.
The proposed amendment has three parts. The first states:
No officer of the United States, including the President and the Vice President, or a Senator or Representative in Congress, shall be immune from criminal prosecution for any violation of otherwise valid Federal law, nor for any violation of State law unless the alleged criminal act was authorized by valid Federal law, on the sole ground that their alleged criminal act was within the conclusive and preclusive constitutional authority of their office or related to their official duties.
The wording was carefully crafted to address the immunity decision’s cynical line between official and unofficial acts. Under the ruling, only crimes committed using private, unofficial power can be prosecuted after a president leaves office.
But it’s the abuse of a president’s official power—such as the commander-in-chief power over the military or the power to investigate and prosecute crimes under Article II’s Take Care Clause—that carries the obvious potential to intrude on individual liberties. Who really cares if a president fudges the numbers on a mortgage application for a beach house? As Raskin noted, it’s the possibility that he might use his official powers to “assassinate political rivals, organize a military coup, or take bribes” that poses the real threat to democracy and cries out for an amendment to undo the damage of Trump v. U.S.
The second part of the proposed amendment states: “The President shall have no power to grant a reprieve or pardon for offenses against the United States to himself or herself.” This provision is a vital companion to the first because it would definitively codify an important limit on the pardon power. Many constitutional scholars, myself among them, have long argued that presidents could not pardon themselves, but the matter has not been tested in practice, and it’s easy to believe that if Donald Trump were to pardon himself, this Supreme Court majority would happily approve.
Since the Court created criminal immunity for presidents in the Trump decision, self-pardons would only conceivably apply to unofficial acts.
The language of this part of the amendment would be improved if it stated that presidents cannot pardon people who help him commit crimes. Without a cadre of loyalists within the federal government willing to do the president’s bidding, the use of his official powers to commit crimes would fall flat. Military commanders, IRS investigators, FBI agents, and international spies would not be covered by the Trump immunity decision if they were to exercise criminal orders coming from the Oval Office. But with preemptive presidential pardons, would-be accessories and co-conspirators could rest assured that, with this Supreme Court majority, there’d be no public recourse for crimes committed at the president’s command.
Finally, the proposed amendment adds: “This amendment is self-executing, and Congress shall have the power to enact legislation to facilitate the implementation of this amendment.” This language is no accident. By using the term “self-executing,” it outmaneuvers the argument the Court used to deactivate Section 3 of the Fourteenth Amendment, also for Trump’s benefit. Despite the Constitution’s express ban on insurrectionists who have already taken an oath to uphold the Constitution from holding federal office again, the Court in Trump v. Anderson held that Congress must enact new legislation specifically activating Section 3—and that without it, Section 3 is a dead letter.
Ratification of a constitutional amendment repealing Trump v. U.S. would require supermajorities in both houses of Congress and among state legislatures. That kind of herculean support means that the amendment has no chance of getting through the Republican party’s entrenchment in authoritarianism. That the Court in Anderson tossed the Constitution to a dysfunctional Congress is only further evidence, again in Raskin’s words, of “how much our democratic values have been eroded and are on the line in November.”
It’s now up to the people to save the Constitution from the Supreme Court.
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