Scholars in the legal community – led by former Federal Judge J. Michael Luttig and former Secretary of Homeland Security Jeh Charles Johnson – have called on their colleagues to stand up against growing authoritarianism in the United States. Most recently, Luttig included promoting a constitutional amendment curtailing the powers of the president as one possible constraint.
What apparently started as a stalling tactic for his DC criminal case, a seemingly unwinnable argument and outrageous ask by Donald J. Trump’s legal team, has now turned into an existential threat to the U.S. system of government. A threat so real that Senator Chuck Schumer and Representative Joseph Morelle, both of New York, have simultaneously proposed constitutional amendments to correct the course set by the Supreme Court of the United States when, last month, six justices granted the person in the presidency immunity for actions taken while conducting official acts.
Morelle’s House of Representatives version of the amendment declares, “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.” And while it goes on to name some federal exceptions, Congressman Morelle believes that if passed, the language will assure that the constitution – and the other two co-equal branches of the government – once again hold presidents accountable.
The two New York congressmen aren’t the only leaders alarmed by the court’s ruling on Trump v. United States. In Pennsylvania, Speaker of the House Joanna McClinton is concerned as well. “As an attorney and as an American, I know that no one is above the law.”
In her earlier career as a public defender, Speaker McClinton worked for justice for the poorest and most powerless defendants. When Bucks County Beacon asked how she felt about the proposed amendment, she condemned the high court’s ruling which preemptively exonerates powerful individuals, regardless of their guilt, “The Supreme Court’s decision awarding broad immunity for former President Trump’s actions in office – including instigating a deadly insurrection – flies in the face of the ideals our country was founded on and sets an incredibly dangerous precedent that could be abused by future administrations.”
Philip Hensley-Rubin, executive director of Common Cause Pennsylvania, agrees. He cautions that unrestrained power in the hands of an unscrupulous person could signal disaster. “Our constitution is founded on a system of checks and balances. It’s really essential for that to work, that the executive not be above the law.” Hensley-Rubin emphasized how remarkable our system was at its inception, “We don’t have kings. We have citizens to carry out the individual responsibilities of the [office of the president].”
Hensley-Rubin sees the SCOTUS ruling, not only as immunity for the president but for everyone who does his bidding. “The president relies extensively on his White House staff. Sometimes people point out that the president may be immune, and that presidential immunity doesn’t carry immunity to his subordinates. But he has unrestrained pardon power.” A jaw-dropping reality for advocates of the constitution like Hensley-Rubin. “He [the president] can order a subordinate to break the law, then pardon that subordinate – that’s extraordinarily dangerous.”
As political pundits count down to election day – with early voting starting in just weeks around the country and Pennsylvania voters able to request an early ballot right now – ratifying an amendment to the constitution before the next president is inaugurated seems a herculean task. Only once before was a constitutional amendment ratified in just four months – and that was the 26th Amendment giving 18, 19 and 20 years-olds the right to vote back in 1971.
Levi Price, an attorney with extensive experience working on state amendments and referendums, sees today’s civic divisiveness as even more extreme than it was when the nation extended voting rights to young people – some of whom had been drafted and sent to Vietnam. “I see a couple of hurdles in our current climate. Getting something through both houses … there are so many partisans.”
Price isn’t just referring to the two-thirds threshold required for an amendment to pass in both houses of the U.S. Congress. He’s concerned about the next step, when the Amendment is sent to the states. Three fourths of the states must approve the amendment. “If you look at every legislature – every one of them has a hard right wing, either in the majority or as a controlling minority.”
In Price’s estimation, this is personal and all about Trump. “If you had asked me twenty years ago, could we get a constitutional amendment saying president aren’t king and no one is above the law, I would have said, ‘sure.’”
Current political climate is exactly what’s on the mind of Erin Wise, spokesperson for Speaker McClinton’s re-election campaign. When asked whether Morelle’s amendment could be ratified in the Pennsylvania assembly, Wise replied, “November could not be more crucial.” Wise pointed to the vast majority of 399 pieces of legislation passed by Pennsylvania’s lower house – in the current biennium – that were ignored when sent to the republican held PA senate for a vote. “An amendment coming down to the states is just another reason why it’s so crucial to keep the gavel in Speaker McClinton’s hands.”
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Rep. Morelle knows November is pivotal. “I always encourage constituents to reach out to their local, state, and federal representatives; to let them know what you think about pending legislation and current issues because legislators serve to represent their constituents and the American people. This election is critical to protecting our American democracy from the election lies and disinformation spread by former President Trump and his allies.”
The inconsistency between Republican power and appropriate representation of their constituents is at the heart of the dispute over whether Morelle’s proposed amendment could pass.
Hensley-Rubin sees potential for ratification of the congressman’s legislation. He points to early polling data showing that 70 percent of Americans favor some sort of amendment to the constitution that would deny any president immunity from prosecution. That number drops to 62% when respondents are asked about whether Trump’s immunity should be denied.
Consequently, this means that Republican held chambers might vote against the overwhelming popular majority to protect special interests. As an example of GOP obstinance in the face of public opinion, Wise cited majority support for sensible gun laws that PA Senators will not allow on the floor for a vote.
Bucks County’s Rep. Tim Brennan gave an even more full-throated endorsement to the power of the electorate. Brennan sees November as a crucial time for voters to educate themselves about what’s at stake before they head to the polls.
Brennan, one of the attorneys who defeated Rudy Guiliani’s defense of Trump’s bogus claims about Pennsylvania election fraud, is a supporter of the constitution as the founders wrote the document. “I’m not a big fan of changing the constitution.”
Brennan thinks Presidential immunity wouldn’t be a talking point if the voters did their homework and voted for character and ability instead of name recognition or fame. “I’m terrified of immunity in the hands of someone not suited to be in the office [of the president]. People are allowing infomercials to creep into their brains.”
Looking at the big picture, Brennan warns that voters have already voted for celebrity instead of substance and points to the impact that had on Supreme Court nominees. “We put someone in the presidency that was willing to dilute the constitution with a bunch of hacks.”
Brennan thinks correcting the court imbalance may be a better route than a constitutional amendment that most legislatures will block. “The gloves are off at this point. We are dealing with a partisan court and we’ll have to deal with that for decades. An argument could be made for an expanded court.” Brennan pointed out the lop-sided reality of “expecting nine people to indicate what 320 million people need.”
New York’s Morelle echoed Brennan’s support for re-examining the Supreme Court, explaining to the Bucks County Beacon that his amendment addresses a symptom created by the justices, but not the court itself. “There are many proposals for Supreme Court reform with significant merit, and I introduced this constitutional amendment to address just one of the glaring issues the Court has presented in recent years. Congress can and should consider multiple ways to ensure that our system of justice serves the interest of every American, not just the powerful. I look forward to working with my Pennsylvania colleagues to ensure nobody is above the law…”
Still, Brennan has real hope as he encourages others in the commonwealth to understand the gravity of this year’s election. “Ordinary Pennsylvanians have a greatly increased ability to influence the quality and the character of this executive,” in this year’s presidential election. Brennan points to the Pennsylvania’s swing-state clout as a reason for his fellow Pennsylvanians to get educated about the issues and to vote. “I certainly do have concerns of Donald Trump’s ability to put the nation’s concerns first. But ordinary Pennsylvanians have disproportional power over the rest of the country. Our best response is for citizenship to prevail. We will have enormous impact on how our country progresses.”
Lastly, Rep. Brennan added, “We are the check on the fundamental temperament and competence of the people we put in charge of the country with the most important decisions made for our country.”
Bucks County voters wishing to vote early have several locations from which to choose. Residents can apply for a mail-in ballot online and/or should bring valid ID to any of these polling places if one wishes to vote in person, ahead of November 5.
