Constitutional Amendments

I’ve argued that the defects of the U.S. Constitution — as interpreted by the Roberts Court and exploited by the Trump administration — leave us no choice but to pursue a long-term goal of amending it. I’ve also hypothesized that the very process of advocating for a set of amendments could be politically useful from a messaging perspective. Consider how the politics of the Republican “balanced budget amendment” during Clinton’s first term — an amendment which, in fact, almost made it to the states for ratification.

The idea — and I should be clear that this entire post falls under the category of “spitballing” or “brainstorming” or at maybe even “pub conversation” — requires relatively simple amendments that a) are good ideas and b) structure debate in a way that is advantageous to pro-democracy reformers. So let me put it this way: if we had already decided on the strategy, what would those amendments look like?

My inclination favors short, modular amendments. I’d call the larger proposal, or al least the platform that included them, something like “The New Declaration of Independence” and then sort them into broad categories along the lines of “No More Kings” or “No Taxation without Representation” or “Independence from Corruption.” Here are some examples:

No One is Above the Law

1. Presidents and former Presidents enjoy no immunity from criminal prosecution, including for actions within their conclusive or preclusive constitutional authority.
2. However, the President of the United States is presumptively protected from federal criminal prosecution during, and only during, his time in office. This protection does not extend to former Presidents, nor to any person who has been elected President more than twice or who has held the office of President, or acted as President, for more than ten years.
3. Congress has the authority to suspend a President’s protection from federal criminal prosecution by resolution, provided the resolution is passed by three-fifths majorities of both houses. The procedure for suspending this protection shall otherwise follow those established for impeachment and conviction, and may be pursued in conjunction with that process.
4. No President may pardon himself. No President may pardon a former President if he served as Vice President at any time during the former President’s term of office.

The President is not a King

The executive powers vested in a President of the United States of America are enumerated in Article II, and shall not be construed to otherwise include powers or prerogatives enjoyed by the Kings of England or other monarchs.

Protecting the Integrity of the Pardon Power

 The Power of the President to Grant Reprieves and Pardons for Offences against the United States is hereby amended and qualified:

1. Congress shall, within three months of the adoption of this amendment, establish and provide for a Federal Board of Reprieves and Pardons.
2. The size of the Board shall be established by statute, but shall include at least five voting officers. Its voting officers must be either former or sitting member of the federal judiciary. Current members of the Supreme Court of the United States are ineligible for appointment to the Board.
3. No more than one-third of the Board’s members may have been nominated to the federal judiciary by any single President of the United States, regardless of whether that President served consecutive or non-consecutive terms.
4. Except in cases involving capital punishment, the President may grant Reprieves or Pardons only to individuals who have been vetted and recommended by a plurality of the aforementioned Board within the prior six months — but only if the plurality vote included members who were nominated to the federal judiciary by at least two different Presidents.
5. Neither the President nor the Vice President may attempt to influence the recommendations of the Board Evidence of such influence will constitute grounds for legal challenges to a Reprieve or Pardon, as well as provide a basis for impeachment proceedings.
6. If the President declines to issue a pardon to such an individual, the Board may reconsider and resubmit their recommendation after six months has elapsed.
7. Presidents may, in cases involving capital punishment, grant a temporary Reprieve pending full consideration of the case by the Board within the next six months. If the Board declines to recommend a permanent Reprieve, the President is empowered to Commute the sentence to one of life imprisonment. The use of these powers does not constitute “influence” as described in Section 5.

This last one is more complicated than is ideal. And obviously we’d want an amendment to enshrine the constitutionality of independent agencies, irrespective of whether or not the “President is not a King” amendment (or its equivalent) already does so.

Ideas? As I said, consider this an opportunity to think about constitutional reforms, especially ones that essentially reaffirm longstanding precedents or attempt to reign in abuse of power.

Apologies for typos, but I really can’t spend any more time on this.