Why the Constitution can't halt a rogue president mid-act, and what it would take to build one that can.
We have a good system in our government. But it fails under the auspices of a bad person (Trump). A bad political party in power (Republican Party now owned by Trump, toxic conservatism curated over decades with perpetual power as its end intent, and under his MaGA foolishness).
Built to Fail Closed
Every constitutional check on the presidency rests on one assumption. Somebody else will act.
Impeachment needs a House majority and two-thirds of the Senate. The 25th Amendment needs the Vice President and a majority of the cabinet, and if the president contests, two-thirds of both chambers to keep him sidelined. Both are opt-in. Nothing happens unless a supermajority chooses to make it happen.
The record shows what that design delivers. Four presidential impeachments in 158 years. Zero convictions. Andrew Johnson survived by one vote in 1868. Donald Trump's second trial in 2021 drew 57 guilty votes, ten short. Section 4 of the 25th Amendment has never been invoked.
Then came Trump v. United States in July 2024. The Court granted absolute immunity for core constitutional powers and presumptive immunity for official acts, and barred official conduct from being used as evidence. Stack that on the Justice Department's standing policy, set in 1973 and reaffirmed in 2000, that a sitting president cannot be indicted. The result: no prosecution during the term, and little after it for anything dressed as official.
What remains is political, and every political check requires a coalition the president's own party can veto. The system has brakes. The question is who has to press them, and what happens when they won't.
No Button Without a Hand
Start with the hard limit. A mechanism that removes a president without anyone's consent has a name, and the name is coup. Whatever tool gets built to stop this president passes to the next one, and to whoever he decides is in his way.
So the human cannot be engineered out. What can be engineered is the default.
Today the default protects the president. Congress does nothing, and the emergency continues. The Senate falls short, and he stays. The cabinet stays loyal, and the 25th sits unused. Inaction is a vote for the status quo, and a captured legislature can deliver inaction indefinitely without a single recorded vote.
Flip it. Tie specific, documentable conduct to consequences that take effect automatically, and make the president's defenders assemble the votes to reverse them. Silence stops being shelter. Every proposal below follows that one rule.
The Courts Have No Police
Federal courts can rule against a president. Enforcing the ruling is another matter.
The U.S. Marshals Service, the arm that enforces federal court orders, sits inside the Justice Department. It answers to an Attorney General the president appoints and can fire. A president defying a court is counting on his own subordinates not to enforce the order against his own administration.
The second gap is the pardon. The Supreme Court held in Ex parte Grossman (1925) that criminal contempt of court is pardonable. In 2017 Trump pardoned former Sheriff Joe Arpaio weeks after his criminal contempt conviction for defying a federal order to stop detaining people on suspicion of immigration status alone. The sequence is the mechanism: order the defiance, then pardon the defiers. The court's last weapon is neutralized from the same desk that caused the problem.
Two fixes. By statute, move court enforcement under the judiciary itself, through the Administrative Office of the U.S. Courts, so the officers carrying out a judgment do not report to the party defying it. By amendment, remove contempt of court from the pardon power. A judiciary that can neither compel nor punish is offering opinions.
Defiance as a Trigger
The 25th Amendment asks Congress to judge whether a president is unable to serve. That is a fitness question, and fitness questions collapse into partisanship on contact. A better trigger is conduct that is binary and on the record.
Defiance of a final federal court judgment fits. Either the order was obeyed or it was not.
The amendment would run like this. When the president, or officers acting on his orders, defies a final judgment, a defined body certifies the defiance: for example, a panel of three circuit chief judges drawn by lot, with expedited Supreme Court review. On certification, presidential powers pass to the Vice President as Acting President, the same transfer the 25th already provides. The suspension holds until compliance, unless a majority of both houses votes within 21 days to restore him.
Compare the burdens. Under Section 4, opponents need two-thirds of both chambers to keep a contesting president out. Under this design, defenders need a simple majority, on the record, to put a defiant one back. The president's party can still protect him. It just has to vote to do it, by name, for defying a court.
The weak points are real. A loyal Vice President may continue the defiance, which is why the trigger has to run to any Acting President. And the certifying judges come from a bench a future president could pack. No design survives a fully captured judiciary. This one at least forces the capture into the open.
Let Silence Kill It
Most day-to-day abuse runs through statutes, not the Constitution. That makes it the cheapest place to fix, and the place where the opt-in flaw is most visible.
The National Emergencies Act of 1976 told Congress to consider a vote on each active emergency every six months. It never has. After INS v. Chadha (1983) struck down the legislative veto, Congress amended the Act in 1985 so that ending an emergency takes a joint resolution, which the president can veto. Ending an emergency the president wants to keep now takes two-thirds of both chambers. The War Powers Resolution of 1973 carries the same post-Chadha wound.
The fix is a sunset. Every emergency declaration, domestic troop deployment, and diversion of appropriated funds expires after 30 days unless Congress affirmatively approves it. The ARTICLE ONE Act, introduced in several Congresses, is built on this model. Pair it with a strengthened Impoundment Control Act that lets the Government Accountability Office win fast injunctions when appropriated money is withheld.
A captured Congress can still extend anything. But it must vote, and every member owns the vote.
The Last Check Carries a Rifle
When every paper check fails, the final one is the person holding the weapon. The design question is whether the law tells that person what to do.
The Posse Comitatus Act of 1878 bars federal troops from domestic law enforcement. The Insurrection Act is the exception, and its triggers are left almost entirely to the president's judgment. Courts have deferred to that judgment since Martin v. Mott in 1827. The exception swallows the rule whenever a president decides it should.
Three changes. Require congressional authorization within days of any Insurrection Act invocation, with lapse as the default. Define the triggers narrowly and make them reviewable in court. And write into the Uniform Code of Military Justice that orders to use force against citizens exercising constitutional rights, or to obstruct a federal court order, are manifestly unlawful, with legal protection for any service member who refuses them.
The oath runs to the Constitution, not the commander. The statute should say what that means before the order arrives, not leave a lieutenant to work it out after.
Ending the Immunity
A statute cannot overrule a constitutional holding. Reversing Trump v. United States takes an amendment, and several were introduced in Congress within weeks of the ruling. None advanced.
An amendment worth the effort would do four things. State plainly that no president, sitting or former, is immune from criminal prosecution. Permit indictment of a sitting president by a federal grand jury, ending the 1973 policy by constitutional text. Provide that such an indictment, once a federal judge finds probable cause, suspends presidential powers to the Vice President pending trial, again restorable by a majority of both houses. And bar self-pardons and pardons for offenses tied to the president's own conduct.
The federal limit is deliberate. Opening the trigger to any of the country's roughly 2,300 local prosecutors would hand removal power to the most partisan county in the nation. A federal grand jury plus a judicial finding is a narrower door.
One companion statute needs no amendment. Pause the statute of limitations for federal crimes while the offender holds the office. No more running out the clock from the Oval Office.
The Hostile-Trigger Test
Every mechanism above has to be judged by its worst possible operator. Hand the defiance trigger to a future Senate majority of the other party. Hand the indictment trigger to a Justice Department run by a president's enemies. If the design still holds, it is worth building. If it only works when the right people hold it, it is a weapon, not a safeguard.
The objections are serious and should be treated as specifications. Unitary-executive scholars argue that any trigger moving power from an elected president to judges or grand juries inverts the framers' design, and that hard removal was the point. The president's supporters reject the premise outright, reading the court clashes as resistance to an electoral mandate. A proposal that cannot answer both will not get the bipartisan votes an amendment requires, and should not.
Then the arithmetic. Two-thirds of both chambers and 38 states. The last amendment Congress proposed that was ratified was the 26th, in 1971. The 27th, ratified in 1992, had been proposed in 1789.
The nearest precedent is the post-Watergate wave: the War Powers Resolution in 1973, the Impoundment Control Act in 1974, the National Emergencies Act in 1976, the Ethics in Government Act in 1978. Every one was written after the crisis ended, by a Congress that had watched the failure up close. Every one was hollowed out within a generation, by courts, by presidents, or by Congress's own disuse. The independent counsel law simply expired in 1999.
The next set will be written by whoever is in the room when this ends. The record says they will write it for the last crisis.
But this is all nuts.
What we have is good, maybe best. But we can’t go this far down some sick fools’ rabbit hole.
But the system we have works, and it should work, provided the people running it want it to.
It was never built for a mentally aberrant president who doesn’t, backed by an overtaken political party that won’t stop him.
It fails only in the one case it was meant for: a lawless president backed by a party that spent decades teaching its voters to distrust the opposition, the press, and the facts, while stacking the courts with judges who share the distrust.We'll do better.
Right?
Cheers! Sláinte! Na zdravie!
JZ Murdock is a retired Senior Technical Writer/IT administrator, and an active award-winning author/ filmmaker, documentarian, and writer based in Bremerton, Washington.
He publishes commentary on the state of things at murdockinations.com and on his creative works over at Substack. He also posts on Slasher.com on the horror genre.
If this work means something to you, you can support it at Ko-fi. Tips are always welcome and go directly toward keeping independent documentary work possible.
No comments:
Post a Comment