The Atlantic | February 22, 2021
WHEN I step back to look at the legacy of President Donald Trump, a surprising conclusion emerges: He has substantially altered the Constitution. His changes aren’t formal, of course. But his informal amendments are important. If left to stand, they threaten to make Congress an advisory body and give carte blanche to rogue presidents.
The surprising aspect of this conclusion is not that the Constitution can be informally amended. That has been the usual way of making revisions. In 1803, the Supreme Court granted itself the power to review laws and overturn them. In 1824, the states tied the electoral vote to the popular vote. Neither of those changes was inscribed on parchment or envisioned by the Founders, but today we can’t imagine our constitutional system without them.
Presidents have been the authors of many informal amendments. George Washington set enduring precedents such as the two-term limit on presidential service (a norm so embedded that after Franklin D. Roosevelt broke it, it was written into the formal Constitution). Andrew Jackson reimagined the president as the direct representative of the people. Abraham Lincoln ruled out secession.
But Trump has been broadly reckoned to be a more ephemeral figure. His bark, many said, was worse than his bite. Sure, he broke a lot of norms and probably also some laws; but his oafishness and short attention span made his constitutional incursions easy to repel. Although his political footprint was deep, his constitutional footprint was faint. Such, at least, has been the conventional wisdom.
Amendment 1. No president shall be removed from office for treason, bribery, or any other crime or misdemeanor, no matter how high, should a partisan minority of the Senate choose to protect him.
This amendment would have alarmed the Founders profoundly. They provided for only one way to remove a malfeasant president—impeachment by a majority of the House and conviction by two-thirds of the Senate. (The Twenty-fifth Amendment is designed for an incapacitated president, not a corrupt one.) Until Trump came along, the process had been used only twice, in 1868 and 1998, for Presidents Andrew Johnson and Bill Clinton. Neither was convicted by the Senate, but the potency of the threat was enough to constrain presidential behavior—a norm that was strengthened in 1974, when President Richard Nixon resigned rather than face impeachment.
Trump was not the first president to be impeached, the first to be acquitted, or the first to be protected by his party. In 1998, Senate Democrats protected Clinton. But the charge against Clinton (perjuring himself to cover up a sexual affair) didn’t seem very serious to the public, and after his acquittal it was still possible to assume that a truly high crime or misdemeanor would result in conviction. Trump and his Republican enablers comprehensively demolished that assumption.
Trump’s first impeachment, in 2020, was for trying to use federal aid dollars to extort political help from a foreign country. That seemed as serious as the Watergate shenanigans that forced Nixon from office. His second impeachment, in 2021, was for sending a seditious mob into the streets to overturn an election—a misdeed that exceeded any prior presidential offense. As the House managers rightly asked in Trump’s second trial, if the Senate did not convict a president for fomenting a violent insurrection, what in the world would it convict him for? The particulars, though, turned out not to matter. In both cases, the outcome—acquittal—was a foregone conclusion, because all Trump needed was 34 pliable and protective Senate votes.
The impeachment mechanism was intended to be a check on presidential misbehavior; instead, post-Trump, it is now more like a partisan permission slip, allowing presidents to do as they please provided they keep their party in line. In other words, from now on, presidents should assume that the way to hold on to power is to stay not on the right side of the law but on the right side of their party. To put it mildly, that is not what the Founders intended.
Amendment 2. Congressional oversight shall be optional. No congressional subpoena or demand for testimony or documents shall bind a president who chooses to ignore it.
Since the earliest days of the republic, Congress’s authority to oversee and investigate the executive branch, though unwritten, has been one of the Constitution’s most important avenues of presidential accountability. Anyone who doubts this need only recall the impact of the Watergate hearings. As teenagers, my brother and I got up and watched them early each morning before school, riveted by the daily revelations. Because congressional investigations can be so embarrassing, presidents have, to one degree or another, slow-walked them since the Washington administration. No news there.
But in recent years, cooperation deteriorated as partisanship increased. And then came Trump. In April 2019 he declared, “We’re fighting all the subpoenas.” Then, during his first impeachment, he shifted from fighting congressional subpoenas to flatly disregarding them. “Nine administration officials refused to testify; executive departments such as the departments of Defense and State rejected all requests for the production of documents,” Bob Bauer and Jack Goldsmith wrote in their recent book, After Trump: Reconstructing the Presidency. “So sue us,” said the administration, knowing that litigating would take years and run out the clock. To make matters worse for Congress, in 2020 a federal court ruled that the courts lack authority to enforce Congress’s subpoenas of the White House.
By the time Trump left office, he had reset the balance in the president’s favor. From now on, if the president stonewalls Congress—well, too bad for Congress.
Amendment 3. Congressional appropriations shall be suggestions. The president may choose whether or not to comply with congressional spending laws, and Congress shall have no recourse should a president declare that his own priorities supersede Congress’s instructions.
In the Founders’ scheme, Congress’s most important and unchallenged authority is the power of the purse. Article I says, in no uncertain terms, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Time and again, from Washington’s day to our own, Congress—especially the House, which initiates spending bills—has relied on its command of the budget to enforce its will. So central was this authority that in 1974, after Nixon impounded appropriated funds, refusing to spend them, Congress passed a law cutting him off at the knees.
That was then. When Congress appropriated only about $1.4 billion to the Homeland Security Department for Trump’s border barrier, instead of the $5.7 billion Trump wanted, the administration simply declared a national emergency on the southern border and used it as a pretext to dip into Pentagon accounts. The White House cited a passel of statutes in its defense, and the usual suspects filed the usual lawsuits. The emergency was bogus and the president’s legal arguments were tenuous, but the money got spent, and Trump made his point: You can’t stop me.
Amendment 4. The president shall have authority to make appointments as he sees fit, without the advice and consent of the Senate, provided he deems his appointees to be acting, temporary, or otherwise exempt from the ordinary confirmation process.
If control of spending is the House’s constitutional superpower, the authority to confirm or reject presidential nominees is the Senate’s. Here, too, growing partisan polarization has made the confirmation tug-of-war more contentious in recent decades. Presidents George W. Bush and Barack Obama found ways around the impasses in the Senate. But, as ever, Trump took defiance to a new level. “One of Trump’s signature governmental initiatives has been to circumvent, or ignore, the Senate confirmation process for top executive branch appointments,” Bauer and Goldsmith wrote. “This conduct had precursors in prior administrations, but Trump took it to new extremes.”
Amendment 5. The president shall have unconstrained authority to dangle and issue pardons for the purpose of obstructing justice, tampering with witnesses, and forestalling investigations.
The president has his own superpower: unconstrained, unlimited authority to pardon and commute federal crimes. In recent years, presidents, fearing political blowback if a pardoned criminal were to commit another crime, have become more and more parsimonious in their use of pardons to correct even blatant injustices. That’s a loss for the justice system. Some presidents made fishy-looking pardons, but underuse of pardons became a much bigger problem than their overuse.
Well, until Trump. Characteristically, he managed to make both problems worse. He used pardons more sparingly than any modern president except the two Bushes, granting only 2 percent of clemency requests, versus more than a third under Nixon, who was no slouch on law and order. More striking, though, was the way Trump used the pardon power: corruptly.
“No other president has, like Trump, used pardons systematically to serve political and personal goals,” Bauer and Goldsmith wrote. Trump routinely circumvented the normal vetting process, and not just a few but the great majority of his pardons went to people with a personal or political connection to him.
What was more troubling, however, was his dangling of pardons to stymie law enforcement that he thought threatened him. During the Mueller investigation, Trump relayed messages to one witness, former National Security Adviser Michael Flynn, to “stay strong.” Trump’s lawyers told Flynn’s lawyers, “Remember what we’ve always said about the president and his feelings toward Flynn.” When Flynn flipped against Trump, the president told reporters, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see.” Later, Flynn flipped back and stopped cooperating with the investigation—and, on November 25, 2020, with the election safely in the past, he got his pardon. Others who held out against Mueller to protect Trump—including Roger Stone (praised by Trump as “very brave”) and Paul Manafort—also got pardons.
The Trump amendments are significant individually, but together they are mutually reinforcing, blocking recourse against a rogue president in every direction. The nullification of impeachment allows the president to dangle pardons, which blocks accountability to law enforcement. Stonewalling blocks accountability to Congress. Temporary appointees and unappropriated spending prevent Congress from pushing back.
Still, we can count our blessings. There was a sixth Trump amendment that he did not get around to adopting in his first term but that he would have put through in a second.
Amendment 6 (not adopted): The president may ignore or violate court orders.
As we’ve seen, Trump was sued many times for his power grabs—by Congress, by private plaintiffs, by practically everyone. When he did lose in court, which was often, he typically acceded to the judgment. Open warfare with the judicial branch was a bridge he was not ready to cross—before the 2020 election. But after? If he’d won? Why not defy the Supreme Court if it got in his way? With the first five amendments already in place, there would have been little for Congress or anyone else to do except stand back aghast as one man became the law.
Still, the successful Trump amendments are destabilizing enough. They give the presidency a degree of unilateral discretion and impunity that the Founders took great pains to preclude. Together, they make it obvious and undeniable that Congress is no longer the first among equals in the constitutional hierarchy, or even a coequal branch. The presidency is supreme.
That change represents a structural revision of the constitutional order, not just a temporary aberration. In the hands of a more able Machiavellian, it could move the country alarmingly close to a truly, not just metaphorically, imperial presidency.
So we are left relying, more than ever before, on presidential character and self-restraint. We are left to hope that subsequent presidents do not use the weapons Trump has given them. President Joe Biden seems reluctant to use them, and if that’s the case, his restraint will provide a welcome respite. But it will also give the illusion that the threat of an unaccountable, uncontainable presidency has subsided—an illusion that could be rudely shattered under a President Donald Trump Jr., or a President Marjorie Taylor Greene, or, for that matter, a resurgent President Donald J. Trump. Any one of them, or some comparable figure from the right or the left, could and would put through Trump’s unadopted sixth amendment, and that would end the rule of law as we know it.
The real fix for the Trump amendments, though, is not statutory. It is political. It requires Congress to begin reasserting its institutional prerogatives and putting them ahead of short-term partisan politics. That won’t come easily in an era when so many members think of themselves as partisan warriors first and members of Congress second—and, especially, when most congressional Republicans have spent the past four years working for Trump.
Most important, repealing the Trump amendments requires a change of mindset among partisans in the public, primarily Republicans. No laws can stymie a chief executive who is determined to ignore them, who punishes anyone who enforces them, and who pardons anyone who helps him evade them. No impeachment process will deter a president whose partisans will protect him regardless of what he does. A conservative party devoted to limited government should be horrified by presidential claims to unlimited personal authority. Instead, however, Republicans have supported Trump’s dangerous precedents at every turn, a decision they will regret if a left-leaning president picks up where Trump left off.
Although he is no constitutional scholar, Trump has a theory of the Constitution: “I have an Article II, where I have the right to do whatever I want as president.” Before he was elected, that theory was plainly wrong. But after his one term in office, the Trump amendments have brought his theory to the brink of realization.