This originally appeared in The Angry Bear blog on politics and policy.
Why are we waiting?
Three months have passed since the Supreme Court’s decision in Trump v. United States, which grants the president “absolute immunity” in all crimes committed in the performance of “official acts.”
If allowed to stand, the Court’s decision makes the president untouchable. Any president can commit crimes with impunity. That means the end of democracy as Madison described it. The president can order the IRS to target his enemies, spend appropriations however he wants, wage secret wars, even assassinate political foes.
Within weeks, President Joseph Biden announced a “plan” to reform the Supreme Court, including a constitutional amendment to restore the rule of law to the president. But the details? Spare. And the public campaign to rally support? Nonexistent.
The Court’s decision should have been a national emergency. It should have aroused a national wildfire of protest, led by a big and loud team of constitutional scholars, civic leaders, politicians, business and labor leaders, and activists. These democracy-savers should be barnstorming the nation, demanding action by 2025. It should the buzz of the media. No politician should be able to go anywhere without being asked: Do you support the 28th Amendment?
To kickstart the process—however belatedly—here’s some language for a Limited Immunity Amendment:
Section 1. No office holders, in any branch of government, shall have immunity for actions that violate the Constitution or the laws of the United States.
Section 2. Limited immunity may apply for actions taken in furtherance of established national law or in cases of national emergency, in accordance with established law
Section 3. Limited immunity may not apply to any actions that directly benefit the actor. All claims of immunity must pertain to acts that are in furtherance of clear policy objectives, apart from the person’s stake in the matter in question.
Section 4. Courts may delay legal determination of criminal and civil claims against the president until after his or her term is complete, if they conclude that the time and attention required to address those claims interferes with the president’s ability to perform his tasks
Section 5: Regardless of possible legal claims against a president, justice or judge, or member of Congress, the House may impeach these officials by a simple majority and secure a conviction with a 60-percent vote of the Senate.
These words could protect America against the danger of corrupt, power-grabbing officials in all branches of government. The amendment would meet the highest ideals of the Framers of the American Republic—and also strengthen the core values of democracy and the rule of law.
Right now, Joe Biden and Kamala Harris have disavowed the idea of immunity. If Harris gets elected, she would not take advantage of presidential immunity.
Right?
Don’t count on it. When presidents get caught in a bind, they often game the system. They issue suspect executive orders. They reshuffle money around the budget. They cover up drone strikes. They make under-the-table agreements with foreign powers. Or they take part in coverups of nefarious behavior in their administration.
Without even the possibility of accountability, the risks involved in presidential misbehavior increase dramatically. Consider the desperation that befalls a president when a war goes wrong (from Vietnam to Afghanistan to Ukraine to Gaza). Consider massive potential for misbehavior when social media are weaponized, when new currencies flow across the world, or when vast migrations overwhelm the power to protect borders.
The Framers of the Constitution understood that, from time to time, we need to adjust the Constitution. Soon after drafting the Constitution, in fact, the Framers added 10 amendments to assure the rights of individuals against state tyranny.
Since then, the Constitution has been amended 17 times. Ten of those amendments altered the Constitution in fundamental ways: ending slavery (13th Amendment), guaranteeing equal protection under the law (14th Amendment), granting blacks’ right to vote (15th Amendment), establishing an income tax (16th Amendment), mandating direct election of senators (17th Amendment), granting women the franchise (19th Amendment), limiting presidents to two terms (20th Amendment), eliminating the poll tax (24th Amendment), modernizing presidential succession (25th Amendment), and lowering the voting age to 18 (26th Amendment).
Times change. Every generation faces challenges that the Framers could not have imagined. To maintain the Constitution’s most fundamental values, sometimes we need to add, subtract, or alter its provisions.
Modern reformers have been too timid to consider major constitutional amendments. If an amendment fails, it could discredit their cause. The Equal Rights Amendment not only took years and churned through valuable resources but may have deflated the women’s movement. Still, the cause persevered.
Reformers also fear that any effort to amend the Constitution could give rise to a new constitutional convention, which might endanger the bedrock features of the system. But an effort to enshrine a single, well-defined concept need not devolve into a free-for-all. A constitutional amendment can be adopted by Congress and the state legislatures without a convention.
In recent years, proposals to amend the Constitution have been more symbolic than substantive. Conservatives have called for amendments to allow prayer in school, ban abortion, balance the federal budget, prohibit burning the American flag, and limit the terms of Congress members. Liberals have proposed amendments to limit the sale of guns, limit spending on campaigns, limit the terms of Supreme Court justices, and make it easier to amend the Constitution.
The Supreme Court’s willingness to hear Trump v. United States shocked constitutional scholars, who argued that the unanimous Circuit Court decision rejecting immunity had rebutted all possible arguments for this extraordinary claim. But the Court took the case and, on the last day of the 2003-24 term, gave Trump an extraordinary and dangerous victory.
This amendment should move like lightning. The last amendment of substance—the 26th Amendment, lowering the voting age from 21 to 18—passed in 100 days in 1971. Sure, nothing works that way anymore. This one might require a long and hard fight—and might fail. But we need to try, for two reasons.
First, it would be unconscionable to simply melt in the face of an existential threat to democracy. If any issue requires attention, it is the claim of an executive to unlimited authority. One thing is for sure: Not trying guarantees defeat. The only question, then, is whether Americans should surrender to this fundamental threat to democracy.
Second, this amendment would provide a compelling rallying point for democracy’s advocates. Traditional conservatives and liberals both have something at stake: the danger that the other side will trample their rights.
To prevail, the forces of democracy must rally their own supporters—a vast majority of the nation—for citizen empowerment and the rule of law. It’s not enough to protest outside the Supreme Court or deliver clever zingers on social media. If democracy is under threat, the time has come to defend it.