The Premature Guide To Post-Trump Reform
A version of this article appears in the August 2025 issue of The American Prospect magazine. Subscribe here.
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, with “utter contempt for the Constitution and laws of the United States.”
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) 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: “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 observes, “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 this 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.”
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 pointed 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 has 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 the constitutionality of the 1974 Impoundment Control Act). He has removed 17 inspectors general without 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.’
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