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THE PREMATURE GUIDE TO POST-TRUMP REFORM  
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Paul Starr
July 31, 2025
The American Prospect
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_ American history offers three general strategies of repair and
renewal. _

American history offers three general strategies of repair and
renewal.,

 

_A version of this article appears in the__ August 2025
[[link removed]] issue of_ The American
Prospect _magazine. Subscribe here
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Donald Trump is teaching us about the limitations of America’s
constitutional system. We may have believed that the Constitution’s
separation of powers, checks and balances, and guarantees of rights
would protect us from a president with authoritarian and corrupt
ambitions. But the framework we have counted on is failing.

Trump’s abuses of his office have met no effective opposition from
the other branches of government. As he has overreached his executive
powers, Congress has done nothing to deter him, and the Supreme Court
has done more to embolden than to contain him. In his first term, the
“adults” Trump appointed to top positions had some cautionary
influence on him, but he has now thrown off restraints and surrounded
himself with sycophants, enablers, and ideologues. Only half a year
into a second term, he is acting, in the words of the conservative
former federal judge J. Michael Luttig
[[link removed]],
with “utter contempt for the Constitution and laws of the United
States.”

_MORE FROM PAUL STARR_ [[link removed]]

Trump governs like a monarch, issuing proclamations—143 executive
orders in his first hundred days—that assume he has unilateral power
to abolish federal agencies, nullify or suspend laws, impound
congressionally authorized spending, and defy the Constitution. He has
attacked universities and law firms, denying them due process and
demanding concessions to which the government has no right; sent
noncitizens to foreign gulags, also without due process; deployed the
military in an American city based on the false claim that protests
were out of control; and launched a trade war against practically the
entire world, partner and rival countries alike, based on a fictitious
economic emergency. The world, even his own party, hangs on his whims,
unsure what he will do next.

These usurpations have enabled Trump to turn the White House and his
private clubs into an itinerant royal court, where people come to beg
for favors and he basks in their subservience and exploits the
presidency for profit. Most dangerously, he has appointed partisans to
top positions in the Justice Department and FBI and singled out
enemies for them to investigate and prosecute, while he pardons
supporters for their crimes. His use of the presidency for personal
ends is undisguised; the corruption is open and at an unprecedented
scale.

The theory of American government, in Madison’s phrase, is that
ambition will counter ambition, but that theory isn’t working.
Presidents once had to respect the institutional prerogatives of
Congress, jealously guarded by members of their own party as much as
by the opposition. Now, Trump and his MAGA movement have cowed
Republican legislators. As Sen. Lisa Murkowski (R-AK)
[[link removed]] has
said, “We are all afraid … retaliation is real.”

The Court has emboldened Trump in two critical ways: through its
ruling on presidential immunity and through decisions striking down
limits on presidential powers.

In addition to protests in the streets and in the states, the efforts
to stop Trump’s abuses have turned to the federal judiciary, “the
last obstacle to a president with designs on tyrannical rule,” as
Judge Luttig puts it. But although the lower courts have often ruled
against Trump, the final disposition of the most important of those
cases rests with a Supreme Court that is only a frail basis of hope
for thwarting his ambitions. The Court has given Trump’s challengers
a few victories, but with a 6-3 conservative supermajority since 2020,
the Court’s right wing has been more of an aid to Trump than a thorn
in his side, much less an effective check on his transgressions.

The Court has emboldened Trump through its ruling on presidential
immunity a year ago, and through a series of decisions striking down
limits on presidential powers. In the case concerning Trump’s
efforts to overturn the 2020 election, the Court declared that
presidents have “absolute” or at least “presumptive” immunity
from the criminal law for all “official acts,” which it defined so
broadly that “unofficial” conduct was reduced “almost to a
nullity,” as Justice Sonia Sotomayor put it in her dissent. The
Court thereby virtually eliminated whatever deterrent power the
criminal law may have had on presidential malfeasance. It identified
the government’s prosecutorial powers as an area of absolute
immunity (making it seemingly impossible to charge a president with
obstruction of justice) and declared that courts cannot consider the
president’s motive for any official act (making it impossible to
charge bribery). The justices finally gave some confirmation to
Richard Nixon’s famous line
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“When the president does it, that means that it is not illegal.”

The Court has also signaled its intentions to strike down limits on
Trump’s ability to control what have long been treated as
independent agencies. As Congress expanded the functions of the
federal government after the Gilded Age, it established agencies such
as the Federal Trade Commission with a degree of independence from the
president. To protect that relative autonomy, Congress set staggered,
fixed terms longer than four years for commissioners and other
appointees and denied the president the authority to fire those
officials at will.

Ninety years ago, in _Humphrey’s Executor_, the Supreme Court
upheld that framework. As Justice Elena Kagan
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“_Humphrey’s_ undergirds a significant feature of American
governance: bipartisan administrative bodies carrying out
expertise-based functions with a measure of independence from
presidential control.” Rejecting the claim that the FTC interferes
with “the executive power,” _Humphrey’s_ affirmed the
authority of Congress to establish such “quasi-legislative or
quasi-judicial” bodies and to forbid the removal of their leaders
except for cause.

In his second term, however, Trump has nonetheless fired many members
of federal boards and commissions, concededly without cause. In an
unsigned, two-page order
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May, the Court’s conservative majority temporarily allowed Trump’s
firings to stand in a case involving the appeal of two such officials,
one at the National Labor Relations Board and the other at the Merit
Systems Protection Board. Citing the first sentence of the
Constitution’s Article II vesting the “executive power” in the
president, the Court declared that its order “reflects our judgment
that the Government is likely to show that both the NLRB and MSPB
exercise considerable executive power.” But it said that it wasn’t
contemplating applying that judgment to the Federal Reserve Bank, an
exception for which it failed to give a convincing rationale. While
deferring its final decision to a full argument, the Court never
cited _Humphrey’s Executor_, which it was effectively overturning,
nor did it acknowledge that it was reducing the power of Congress as
it enlarged presidential powers. The Court gave Trump grounds for
believing, as he put it in his first term, “I have an Article II,
where I have the right to do whatever I want as president
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The very way in which the Court made its decision—without a full
briefing and argument by both sides—legitimized a “move fast and
break things” ethos in constitutional law, as University of
Pennsylvania law professor Kate Shaw
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out. That was also true of a ruling handed down in June concerning a
federal judge’s injunction pausing national enforcement of Trump’s
executive order canceling the 14th Amendment’s guarantee of
birthright citizenship. The Court effectively said to Trump: Go ahead,
take the law into your own hands, and we’ll get to the
constitutional issue later.

The decision ending nationwide injunctions has far-reaching
implications for the many cases in which lower-level courts have
paused orders by Trump that blatantly violate the law. It requires
those who are trying to block an executive order that limits or
eliminates a legal right to go through the more complex process of
filing a class action lawsuit if the ruling is to take effect for
others besides the immediate parties. As a result, it may enable the
president to suspend rights and create a new de facto reality until
the Supreme Court gets around to resolving what may be a protracted
legal battle. In a dissent, Justice Ketanji Brown Jackson called the
majority’s arguments about 18th-century English and American law a
“smokescreen” to give the president “the go-ahead to sometimes
wield the kind of unchecked, arbitrary power the Founders crafted our
Constitution to eradicate.”

Trump has governed like a monarch, but the coequal branches of
government have done nothing to stop him. Markus Schreiber / AP Photo

AMONG THE WORLD’S MAJOR NATIONS, the United States has one of the
oldest and most rigid written constitutions, rarely altered through
amendments because the requirements for ratification are so high. (No
amendment has been added since 1992.) The survival of the written
Constitution would have been impossible if not for unwritten norms of
restraint that most presidents have respected, and for the
countervailing power of the other branches.

Trump has shown how vulnerable the government is to a descent into
authoritarian rule when the president is contemptuous of the norms,
Congress is under his thumb, and the Court is an accomplice. Under
Trump and the Roberts Court, the power of the state has become
concentrated to an extraordinary degree in one man. This is not the
system most Americans believe the Constitution established.

The immediate task for the opposition to Trump is to use every
available legal means of appeal and political mobilization to stop or
slow him down. But there must be a long-run agenda too. Trump’s
actions are not popular, and they are likely, sooner or later, to blow
up and produce a reaction. As distant as a post-Trump future may now
seem, we should look ahead to a time when Americans are ready to
repair both the harm done by Trump and the institutions that have
allowed it.

History offers three models for institutional repair: changing the
laws, changing the Supreme Court, or amending the Constitution. The
first is the post-Watergate model, which primarily involves codifying
unwritten norms in legislation and executive branch rules. The second
is the politically treacherous path of judicial reform. The third,
amending the Constitution, is only a dim possibility but still useful
to consider, because some of the problems highlighted by Trump lie in
the Constitution itself.

Besides the passage of the Bill of Rights in the nation’s first
years, there have been two other eras of major change through
constitutional revision: Reconstruction after the Civil War and the
Progressive Era in the early 20th century. Each period saw the passage
of three democratizing constitutional amendments. The Reconstruction
amendments abolished slavery, guaranteed birthright citizenship and
equal protection of the laws, and declared that the franchise could
not be denied on the basis of race. The Progressive Era amendments
introduced popular election of senators, authorized an income tax, and
declared that the franchise could not be denied on the basis of sex.
In thinking about the future, we might ask: What package of amendments
in a post-Trump America might strengthen American democracy again?

I present these three models in order of escalating difficulty and
therefore call them “levels” of reform, but reforms at even the
first level would be hard. If you think these are impossible, consider
them a measure of how deep a hole we’re in. But then remember
that’s how many Americans have felt at other dark moments in our
history.

LEVEL 1: THE POST-WATERGATE MODEL

The spate of reforms adopted in the 1970s after the Watergate scandal
and Nixon’s resignation provide the most direct precedent for
controlling presidential aggrandizement. The Watergate investigations
revealed a wide range of abuses under Nixon, including the enlistment
of the Justice Department and IRS in attacks on political enemies,
obstruction of justice by the president, and bribery of the president
through secret campaign slush funds and contributions in exchange for
political favors. The scandal also created an opportunity to address
related problems such as presidential impoundment of congressionally
appropriated funds, ill-defined presidential emergency powers,
domestic surveillance by the intelligence agencies, and the erosion of
Congress’s war powers.

The post-Watergate reforms did not aim to enfeeble the presidency.
They reflected a broad consensus about the need to restore trust in
government and aimed to increase governmental transparency, curb
corruption, and strengthen the role the Constitution assigned to
Congress. In his 1974 book _The Imperial Presidency_, Arthur
Schlesinger Jr. captured the spirit of the reforms: “We need a
strong presidency—but a strong presidency within the
Constitution.” This has obvious resonance today.

Not all the post-Watergate reforms survived. The 1974 campaign finance
legislation that aimed to limit the corrupting influence of money in
politics was almost entirely undone by the Supreme Court, through its
long line of decisions from _Buckley v. Valeo_ in 1976 to _Citizens
United_ in 2010. The law providing for independent special
prosecutors was not renewed in 1999; authority to name special
prosecutors reverted to the attorney general. But “on most
issues,” as Harvard Law School professor Jack Goldsmith
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said, “the reforms succeeded for almost five decades in reducing
executive branch corruption” and enhancing government transparency
and the rule of law.

Much of the post-Watergate legislation sought to limit the unilateral
and arbitrary power of the president. The Congressional Budget and
Impoundment Control Act of 1974 reasserted Congress’s power of the
purse and limited the president’s ability to refuse to spend money
Congress had appropriated. The National Emergencies Act of 1976
canceled all existing emergencies, established rules for the president
to declare an emergency and obtain special powers under certain
statutes, and enabled Congress to terminate an emergency and end those
powers. The Privacy Act of 1974 and the Tax Reform Act of 1976 limited
the disclosure of government-collected personal information and the
sharing of that information among agencies.

A post-Trump legislative agenda could begin by reinforcing the
post-Watergate laws and reaffirming the public purposes that motivated
them.

The Inspector General Act of 1978 created the first offices of
inspector general within federal agencies—there are now 73 of
them—to conduct audits and investigations and identify fraud,
abuses, and inefficiencies to be reported directly to Congress. The
Ethics in Government Act of 1978 established a centralized federal
office, the Office of Government Ethics, to oversee federal ethics
rules, including financial disclosure requirements for the president,
other high-level federal officials, and members of Congress. The Civil
Service Reform Act of 1978 created the Merit Systems Protection Board,
providing, among other things, the first protections for
whistleblowers against retaliation (later strengthened in the
Whistleblower Protection Act of 1989).

Besides signing these legislative measures, Nixon’s successors
adopted changes in executive branch rules to address concerns raised
by Watergate. For example, rules for contacts between the White House
and Justice Department barred the president from directing individual
investigations and prosecutions. The ethics laws regarding financial
conflicts of interest of senior government officials did not apply to
the president or vice president (except for financial disclosure
rules), but presidents generally agreed to abide by the same
conflict-of-interest norms as if the laws applied to them.
Presidential candidates and presidents from Watergate until Trump also
complied with a public norm to disclose their taxes, although no law
required them to do that either.

By claiming there was pervasive corruption in previous
administrations, Trump has implicitly disparaged the post-Watergate
reforms and helped justify running roughshod over them. During his
2016 campaign and first term, he found he could get away with ignoring
the norms to disclose his taxes and to avoid financial conflicts of
interest. He now acts as though the anti-corruption laws and limits on
presidential power do not exist.

The list of Trump’s assaults on the post-Watergate reforms grows
month by month. He has shut down federal agencies by impounding funds
appropriated by Congress (and now intends to challenge
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constitutionality of the 1974 Impoundment Control Act). He
has removed 17 inspectors general
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cause or notice to Congress (after firing five of them in 2020) and
gutted the offices within the executive branch that were established
to provide legal oversight, enforce ethics rules, and investigate
public corruption. After Watergate, Congress established ten-year
terms for directors of the FBI; in his two terms, Trump has fired FBI
directors twice before their terms were over. In violation of the War
Powers Resolution of 1973, he bombed Iran in June without even seeking
a fig leaf of congressional authorization for the use of force. (The
Senate, agreeing to its irrelevance, voted down a war powers
resolution requiring its consent for any further hostilities toward
Iran.) By executive order, Trump has simply stopped enforcing another
of the post-Watergate laws, the Foreign Corrupt Practices Act of 1977,
which bars U.S. companies from bribing foreign officials for business.

The Constitution requires the president to “take care” that the
laws are “faithfully executed.” By no stretch of the imagination
is Trump taking that care with the anti-corruption laws, or the laws
that require him to seek authority from Congress.

A post-Trump legislative agenda could begin by reinforcing the
post-Watergate laws and reaffirming the public purposes that motivated
them. Congress could strengthen the enforcement provisions of the
Impoundment Control Act. In light of the Supreme Court’s ruling
about the president’s power to remove executive branch officials,
Congress could put inspectors general out of the president’s reach
and under its own protection as part of the Government Accountability
Office, a congressional agency (although Trump has tried to control
congressional agencies too).

Congress could also enact a new National Emergencies Act that would
limit the ability of presidents to declare forever emergencies. In
1983, the Supreme Court struck down the provisions in the 1976 act
that enabled a single chamber of Congress to withhold consent for an
emergency’s continuance. Under the Court’s decision, Congress now
must have a two-thirds majority in each house to overcome a
presidential veto and end an emergency. As Josh Chafetz of Georgetown
Law School suggested recently in an unpublished paper, a new
Emergencies Act could—like the original 1976 act—terminate all
existing emergencies and end lurking emergency powers in statutes that
Congress no longer thinks necessary. Most important, it could
establish new sunset provisions. Emergencies would end within a short
period (perhaps 60 days) and be nonrenewable unless approved under
expedited procedures by a joint resolution of Congress. Those
provisions, as Chafetz argues, would afford presidents short-term
powers in genuine emergencies but ensure that Congress retains the
power to make lasting policy.

Congress could also pass legislation to deter presidents from criminal
actions despite the Supreme Court’s immunity decision. As Goldsmith
and Bob Bauer pointed out in their 2020 book _After Trump_, a
president typically cannot carry out wrongdoing without the aid of
subordinates. Congress could pass legislation providing that in a
trial of a subordinate, no federal court could recognize as a defense
the fact that the subordinate acted on instructions of the president
or on the president’s behalf. Congress could also challenge the
Court’s immunity decision by making it a crime for a president to
use the pardon power corruptly in return for something of value, or to
protect a subordinate in the commission of a crime.

Legislation could also make explicit that the Constitution’s Foreign
Emoluments Clause applies to the president, and that income or gifts
from foreign sources require congressional consent. Unlike the
Domestic Emoluments Cause, which specifically names the president, the
bar against foreign emoluments reads: “no Person holding any Office
of Profit or Trust under [the United States] shall, without the
Consent of Congress, accept of any present, Emolument, or Title, of
any kind whatever, from any King, Prince, or foreign State.”
Although legislation passed by Congress in 1966 assumed the clause
applied to the president, some legal analysts dispute the point. The
Supreme Court will ultimately resolve it.

During Trump’s first term, the Court managed to duck a decision
about whether Trump’s income from foreign visitors to his hotels
violated the Foreign Emoluments Clause. That nondecision has now
emboldened Trump to take money from abroad on a grand scale, through
his crypto business and Trump Organization contracts for building
resorts, and even in the form of a jet plane destined for his
post-presidential personal use. Congress needs to assert its consent
power. Legislation could spell out procedures for presidents to obtain
congressional consent and what they would have to do if Congress
refused it. As Goldsmith and Bauer suggested in 2020, Congress should
also make explicit that while in office no president may participate
in a private business interest.

These measures would probably require a Democratic president and a
working Democratic congressional majority or a substantial number of
non-MAGA Republicans who agreed with the aim of constraining the
president (now that there was a Democrat in office!). But far from
making radical departures, a Congress that took these steps would
mostly be codifying pre-Trump norms. Level 1 post-Trump would be
post-Watergate II.

Trump’s corruption and overreach pose a more serious threat to
democracy than Nixon’s, in part because Congress and the Supreme
Court are not standing up against Trump as they did against Nixon.
Congress won’t necessarily remain in MAGA Republican hands, but the
current Supreme Court has a potential for self-perpetuating partisan
control that post-Trump reform needs to confront.

Democrats must be as determined as Republicans to avoid indefinite
conservative judicial rule.

LEVEL 2: CHANGING THE SUPREME COURT

The Supreme Court ostensibly provides nonpartisan justice, but for
years it has been wielding a right-wing Republican veto over the U.S.
government (or in Trump’s case, flashing a green light). The
potential for judicial entrenchment lies fundamentally in the lifetime
appointments that enable justices to retire when the president in
office belongs to the same party as the one who appointed them.
Democratic-appointed justices have not held a majority on the Court
since January 1972, and because Jimmy Carter made no appointments,
Republican presidents had ten consecutive nominations from 1969 to
1991. Although some appointees did not fulfill conservative hopes,
enough chose to retire during Republican administrations to give the
party a continuing advantage.

Yet that advantage wouldn’t have been sufficient to keep control of
the Court; Republicans also played “constitutional hardball,” the
tough-minded pursuit of power through means that violate public norms
but are not illegal. When Justice Antonin Scalia’s sudden death in
February 2016 threatened to flip majority control, Senate Majority
Leader Mitch McConnell ignored previous norms and blocked Obama’s
nominee Merrick Garland on the flimsy grounds that it was an election
year. McConnell’s hardball then paid off in 2017 when Trump was able
to fill Scalia’s seat with Neil Gorsuch. But in September 2020, when
Justice Ruth Bader Ginsburg died, McConnell saw no problem with
accelerating the confirmation of Trump’s nominee, Amy Coney Barrett,
just days before an election Trump would go on to lose.

If previous norms had held, Barack Obama would have filled Scalia’s
seat and Joe Biden would have filled Ginsburg’s, giving Democratic
appointees a 5-4 majority—in which case Trump would likely not have
been shielded from criminal prosecution.

Republican-appointed justices have also entrenched themselves in the
Court’s majority by favoring Republican interests in cases with
large and unambiguous electoral consequences. What is striking about
these electorally pivotal cases—_Bush v. Gore_, which settled the
2000 election; _Shelby County v. Holder_, the 2013 case overturning a
critical part of the Voting Rights Act; and _Trump v. United States_,
the 2024 immunity decision—is that none had a conservative doctrinal
rationale. Instead, to support their decisions the justices invoked ad
hoc criteria without a basis in constitutional text that they
consistently followed.

The whole pattern has been circular: Republican presidents appointed a
majority of the sitting justices, and the justices have returned the
favor. By protecting Republican political power at moments when that
power was at stake, they have also entrenched their own control of the
law.

Unless Democrats are prepared to live indefinitely under Republican
judicial rule, they are going to have to be as determined as
Republicans have been to gain a Supreme Court majority. To do so, they
will need to follow a strategy that involves both constitutional
hardball and constitutional reform.

The size of the Supreme Court is not fixed by the Constitution and has
been changed in the past through ordinary legislation. Between 1863
and 1869, Republicans changed the Court’s size three times: first
adding a tenth seat to give Abraham Lincoln an extra appointment; then
cutting the Court to seven to deny Lincoln’s successor, Andrew
Johnson, appointments; and, finally, re-enlarging the Court to nine to
enable Ulysses Grant to fill two seats. Hardball has a long history.

In 1937, faced with judicial vetoes of New Deal programs, Franklin
Roosevelt also proposed changing the Court’s size. He wanted to add
six justices but hadn’t laid down the foundation for that step in
his landslide re-election the year before. Yet while Congress didn’t
approve the expansion, Roosevelt won his struggle with the Court. Not
only did one justice switch positions on New Deal legislation;
Roosevelt also soon had seats to fill due to retirements, which he and
congressional Democrats encouraged by increasing judicial pensions (a
move that might better be described as softball than hardball).

If and when Democrats again control the White House and Congress, they
will have to play hardball to get out from under Republican judicial
vetoes by what is now a right-wing supermajority. They could pass a
short-term increase in the size of the Court to give themselves a
majority by adding four additional seats, while at the same time
setting term limits for the justices. Judicial reform is politically
treacherous because it invites tit-for-tat changes in the Court, but
Republican overreach on the Court has left Democrats little choice,
and term limits provide the means of a settlement.

There has been some dispute as to whether Congress could establish
term limits for Supreme Court justices by ordinary legislation or
would need to send an amendment to the states for ratification. The
optimal strategy, if the votes allowed it, would be to try doing both.
Under term-limits legislation, the justices would continue to have
lifetime appointments to the bench, but they would rotate off the
Supreme Court to appellate courts after a fixed term of, say, 18
years. Each president would then have two Supreme Court appointments
per four-year presidential term. The sitting justices might well rule
that a law limiting their service on the Supreme Court is
unconstitutional. But that self-interested decision in favor of two
unpopular ideas—gerontocracy and juristocracy—could help get the
term-limits amendment ratified by the states.

LEVEL 3: AMENDING THE CONSTITUTION

The likely need of constitutional change to set term limits for
Supreme Court justices brings us to the third and most difficult level
of reform—amending the Constitution itself.

Executive coups have become the principal form of democratic breakdown
around the world. Elected leaders use their positions to deny the
opposition an equal chance to win the next election. The outcome,
while not a traditional dictatorship, may still be an autocracy
because the incumbent regime uses the leverage of the state to disable
its opponents and stay in power. The U.S. government is now at risk of
exactly this authoritarian transformation.

The central problem is that the Constitution provides no real
deterrent to presidential aggrandizement and malfeasance. In a country
that has relied on norms of executive restraint, it has taken one
disinhibited president to show the need for more explicit deterrents
and constitutional limits. At the heart of the failure is that
presidential impeachment is almost always an empty threat. The
requirement of a two-thirds vote for a conviction is high enough that
loyalists in a president’s party ordinarily have enough votes for an
acquittal. No president has ever been removed from office through a
trial in the Senate. We can’t even be sure that Nixon would have
been convicted if he had fought impeachment.

The Senate’s inability to convict Trump for his efforts to prevent
the peaceful transfer of power and incite an assault on the Capitol on
January 6, 2021, raises an additional problem of deterrence. Some
Republicans who voted to acquit, including McConnell, said they did so
because he was out of office by the time the trial took place (even
though judges have been impeached after leaving the bench, and
conviction in an impeachment trial makes possible a unique penalty,
lifetime banishment from federal office). McConnell may have expected
Trump would face a criminal trial. But in _Trump v. United States_,
the Court declared that presidents enjoy absolute immunity in their
“core” areas of authority, including their role in charge of the
Justice Department and as commander in chief. Together, the Senate
acquittal and the Court’s ruling drastically reduce the risk of any
legal accountability for an attempted executive coup at the end of a
president’s term.

Democrats will need to follow a strategy that involves both
constitutional hardball and constitutional reform.

The Constitution’s unqualified pardon power creates additional
problems. As Trump has shown, a president unrestrained by public norms
can pardon supporters who have violated the law on the president’s
behalf. Trump even pardoned those who committed violence on January
6th against the Capitol Police, an invitation to further
insurrectionary violence by his supporters. Before leaving office, a
president could issue blanket pardons to aides and other supporters
and a self-pardon. Although a self-pardon violates basic norms of
justice, the Constitution is silent on the subject.

In addition to an amendment setting fixed terms for the Supreme Court,
we need what might be called “The President Is Not Above the Law
Amendment” (it could also be called the “No Kings Amendment”).
The first of several clauses would restrict the pardon power by
declaring that federal courts would not recognize as valid any
self-pardon, any pardon to members of a president’s own family, any
pardon to a subordinate for the commission of a crime, or any pardon
corruptly given in exchange for something of value, including the
withholding of testimony. (In their 2020 book, Bauer and Goldsmith
provide text for legislation that this amendment would enable Congress
to pass.)

The overall purpose of The President Is Not Above the Law Amendment
would be to restore the law’s power to deter presidential
malfeasance involving official acts. Another clause would declare that
the president is not immune from prosecution for obstruction of
justice, bribery, and other crimes, and set out the method for
empowering a special prosecutor in such cases. But it would also
establish that any indictment would remain under seal, the statute of
limitations would not toll, and the prosecution would not proceed
until the president was out of office. (As an alternative, the
amendment might use the mechanism of the 25th Amendment, empowering
the cabinet to require the president to step aside while the vice
president serves as acting president until the criminal charges are
resolved.)

To create a credible deterrent, The President Is Not Above the Law
Amendment would also have a third clause, reducing the vote needed for
an impeachment conviction from two-thirds of the Senate to
three-fifths. Finally, a fourth clause would explicitly state that the
president is subject to the Foreign Emoluments Clause and cannot
participate in any private business interest while in office.

In addition to amendments setting fixed terms for Supreme Court
justices and restoring deterrence against presidential malfeasance, we
need a third amendment to restore the checks on presidential power
that Congress originally created through independent agencies, and the
Supreme Court is in the process of destroying. The basic idea would be
to constitutionalize the relative independence of independent agencies
and to codify the post-Watergate norms limiting the president’s
partisan use of ostensibly nonpartisan government powers.

As Mark Tushnet, a professor at Harvard Law School, explains in his
2021 book, _The New Fourth Branch: Institutions for Protecting
Constitutional Democracy_, some modern constitutions try to thwart
anti-democratic leaders by locating functions such as election
administration and anti-corruption investigations in a nonpartisan
fourth branch. That would be a hard case to make in the American
context, where the 18th-century idea of three branches has become
sacralized.

But an amendment could approximate a democracy-protecting branch by
explicitly giving Congress the power to set fixed, staggered terms for
agency leaders; barring the president from removing those leaders
except for causes enumerated by statute; and creating a firewall
between the presidency and individual investigations, indictments, and
prosecutions (an executive equivalent of the Constitution’s bar
against bills of attainder).

Although I suggested earlier that Congress could transfer the offices
of inspector general to a congressional agency, an amendment that
protected inspectors general from being fired except for cause but
left them embedded in the departments they audit would be a better
long-term solution. Protections against arbitrary firings and a
firewall against interference from the White House would also ensure
the independence of the Federal Reserve, the Federal Election
Commission, the Office of Government Ethics, the Merit Systems
Protection Board, and other offices with similar missions. These
protections might also be extended to the knowledge-producing agencies
of the federal government, such as the National Institutes of Health
and various federal statistical agencies such as the U.S. Census
Bureau. Presidents would still make appointments and Congress would
have to confirm those nominees, but the terms would be staggered and
preserve a degree of participation by the minority party.

WITH THREE AND A HALF YEARS REMAINING in Trump’s second term and
the possibility that JD Vance or another MAGA Republican may succeed
Trump, the assaults on constitutional democracy are by no means over.
From 2021 to 2025, President Biden and Congress did not seize the
opportunity to enact legislation to deal with the institutional
problems that Trump’s first term had already revealed, except for a
revision of the Electoral Count Act. Democrats also did not have the
necessary consensus or nerve to undertake judicial reform.

The same thing may happen if the Trump era ends in January 2029.
Urgent economic, public-health, or international problems may dominate
the post-Trump agenda, and Congress and the new administration may
again just move on without addressing the deeper constitutional
vulnerabilities that Trump has exposed. The kinds of post-Trump
reforms I have described would require not just a change in the party
in power, but a reckoning with America’s constitutional
vulnerabilities and a determined effort to change the structure of the
Supreme Court and restore constraints on the presidency. Amending the
Constitution would be impossible without broad agreement recognizing
that the survival of constitutional democracy in the United States
requires constitutional change.

It is hard to be optimistic about such changes, and even writing about
them may seem not only premature but naïve. But a president with
uncontrolled powers who surrounds himself with obsequious aides and
right-wing ideologues is a recipe for a train wreck.

Constitutionalism is a source of strength because the kind of
unilateral, capricious, and corrupt rule that Trump represents is
ultimately destructive of both freedom and the underpinnings of
government itself, including the public trust. Schlesinger was right
to argue, “We need a strong presidency—but a strong presidency
within the Constitution,” but I would now put the point more
sharply: We can have both freedom and a capable government only within
a strengthened Constitution.

In the founding era, Americans wrote and ratified a constitution with
a far more powerful national government than had existed under the
Articles of Confederation—but we immediately constrained that new
government with the Bill of Rights. The early American republic
thereby established both a more powerful nation-state and more
stringent limits on its power. In the 20th century, Americans did the
same thing. We enlarged the functions and power of the national
government but constrained that power by establishing stronger
guarantees of civil liberties and equal protection of the laws, and
through the post-Watergate reforms controlling corruption and limiting
the president’s unilateral powers.

This is what we have to do again. As I argued in my book _Freedom’s
Power_, we need a powerful and capable government, but limited power
is more powerful than unlimited power.

If conservatives eventually remember that they believe in
constitutional restraints on the executive, they will likely say the
cause of the troubles Trump produced lies in the growth and power of
the federal government. But we need a new version of what has always
been the American constitutional answer: a strong government with
strong internal checks as well as the check of free thought, a free
civil society, robust public debate, and fair elections. There is a
staggering amount of work to rebuild that system after the damage that
Trump is doing to it.

_PAUL STARR, founding co-editor of The American Prospect and professor
of sociology and public affairs at Princeton University, is the author
of the forthcoming book ‘American Contradiction: Revolution and
Revenge From the 1950s to Now.’_

_The American Prospect needs your support in this crucial time for
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