Amend the Constitution to Prevent Another Trump

Much of the relief felt from President-elect Joe Biden’s victory is in the return to a presidency based on behavioral norms. President Donald Trump’s years in office reminded us how important those norms are, and also proved that many of them have little or no legal force. 

One of the Biden administration’s first steps should be to propose a constitutional amendment to establish the most important presidential standards in law — an amendment that would be in keeping with American constitutional history.

Trump began to break traditions from the start of his candidacy. From refusing to release his tax returns to interfering with Justice Department investigations, he's exploited the extent to which we have relied on personal restraint to protect institutions. By gutting the government's watchdog functions, the Trump administration eliminated many of the checks against bad behavior. The ultimate enforcement mechanisms — impeachment and indictment — don’t work in a Senate willing to countenance the president’s behavior and with a Justice Department that is directed to facilitate it. 

A 28th constitutional amendment could keep this from happening again. First, an amendment should work against conflicts of interest by making the disclosure of tax returns well before Election Day an eligibility requirement for federal offices. And it should expand the Constitution's emoluments clause, which bars the president from accepting gifts or favors from foreign states, to explicitly include the president and his or her immediate family, and cover businesses held directly and indirectly.

The amendment should replace the Office of Government Ethics with a new entity that's responsible jointly to the president and both houses of Congress, charged not only with establishing ethics regulations but also with suspending officials who violate them. It should institutionalize the independence of the Justice Department by making the attorney general an officer who serves at the pleasure of both the president and Congress, thereby ensuring that attorneys general would not be able to do active harm for very long.

Finally, the amendment should prevent presidents from pardoning themselves, their families, their staffs and campaign officials, and perhaps even major donors to their campaigns. It should eliminate the ability to grant pardons between Election Day and the beginning of the next presidential term.

The actions of presidents and candidates have led to constitutional amendments before. The 12th Amendment, ratified in 1804, fixed flaws in the Electoral College system that were revealed in the elections of 1796 and 1800. The 22nd Amendment, ratified in 1951, established presidential term limits after Franklin D. Roosevelt broke a tradition set by George Washington by seeking a third and fourth term. The 25th Amendment, ratified in 1967, clarified rules for presidential succession and incapacitation that had been highlighted by Dwight D. Eisenhower’s health issues and the assassination of John F. Kennedy.

In 2021, any proposed constitutional amendment would inevitably start off as a partisan effort: a Democratic repudiation of the Trump administration. But it need not remain so. Many Republicans in Congress demonstrated unease with many of Trump’s actions, even if most were unwilling to condemn them. At various points during the last three years, polls suggested two-thirds of Republican voters have disagreed with the president on issues such as tax disclosure or self-pardons. And the prospect of a future Democratic president following Trump's template should make Republicans willing to act.

In fact, the 22nd Amendment followed precisely this trajectory. Republicans tried unsuccessfully to make FDR's break with term-limit traditions a campaign issue in the 1940 and 1944 elections. Many Democrats were also uneasy with FDR’s decision but chose to overlook it thanks to FDR’s strong support among voters. When Republicans regained Congress after the 1946 elections, they immediately endorsed a constitutional amendment to limit presidents to two terms. Despite its partisan flavor, the amendment reached the necessary two-thirds vote in both the House and Senate because many Democrats supported it.

Ratification by the states also started as a sharply partisan effort. Eighteen Republican-controlled legislatures approved the amendment within two months, but that was nowhere near the three-quarters of states (36 in 1947) needed to make it law. Over the next three years, the amendment began to be seen less as a protest against FDR and more as endorsing a long-standing tradition. It was eventually ratified by 18 more states — eight controlled by Republicans, nine by Democrats and one with split control — to become law in March 1951.

The 22nd Amendment shows a path by which an amendment to restore presidential integrity could have a strong chance of success even though Democrats can't get it done alone. If congressional Republicans oppose it, the proposal would become a powerful weapon in the 2022 elections — one that would allow Democratic candidates to run on a position that could appeal to independents and Republicans. Any opposition by an ex-President Trump would help remind voters of aspects of his administration that Republicans would prefer them to forget.

Above all else, integrity is precisely the kind of issue that a President Biden, with his emphasis on “the soul of America,” could make a hallmark, and which could attract the kind of Republican support that would help him demonstrate that collaboration can work. As such, it would not only improve the Constitution but also become a national, bipartisan issue in a nation that desperately needs one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Rohit Aggarwala is an adjunct professor at Columbia University’s School of International and Public Affairs and former director of long-term planning and sustainability for the City of New York.

©2020 Bloomberg L.P.

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