Trump's Constitutional Override: Can He Do It?

Former US President Donald Trump has made several attempts to alter the US Constitution, including signing executive orders that have been deemed to destroy many of the certainties of the American constitutional system. Trump has tried to end the long-standing tradition of birthright citizenship, which is protected by the 14th Amendment, by issuing an executive order. However, it is important to note that executive orders cannot amend the Constitution and must work within its parameters. Amending the Constitution is a challenging and lengthy process that requires a two-thirds vote in both the House and the Senate, as well as ratification by three-quarters of the states. While Trump has proposed constitutional amendments, no US president can unilaterally alter, rewrite, or amend the Constitution.

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Trump's attempts to override the 14th Amendment

In 2018, Donald Trump suggested that he would end the practice of granting citizenship to anyone born in the United States, protected by the 14th Amendment, by signing an executive order. This proposal was widely criticised as unconstitutional, as executive orders must work within the parameters of the US Constitution, and cannot be used to amend it.

Trump's proposal was based on his view that birthright citizenship is "ridiculous", and that the US is the only country in the world with such a policy. However, birthright citizenship has been enshrined in the US Constitution since 1868, and has been upheld by the Supreme Court on multiple occasions. The 14th Amendment states that "all persons born or naturalized in the United States" are granted citizenship, and legal experts agree that Trump would need to pass a constitutional amendment to overrule it.

To pass a constitutional amendment, Trump would need two-thirds of both the House and the Senate to approve it. Even with a Republican majority in both chambers, it is unlikely that Trump could secure the necessary votes. Furthermore, even if Congress approved an amendment, 75% of states would need to ratify it, which is another significant hurdle.

The US Constitution is practically impossible to amend

The US Constitution is indeed difficult to amend, and there are several reasons for this. Firstly, any changes to the Constitution must go through a rigorous process. A two-thirds majority vote is required in both the House and the Senate to propose an amendment, and even then, three-quarters of states must ratify it. This is a challenging threshold to meet, especially in a highly partisan political climate.

The US Constitution has not been amended since 1992, and there have only been 27 amendments in total (17 if you don't count the first ten, which were made at the same time). This rarity of amendments is due to the challenging nature of the process, which becomes even more difficult when the country is polarized and political divisions run deep.

The US Constitution is said to be ""constructively unamendable," a term that refers to a situation where a constitution is freely amendable in theory, but practically unamendable due to various factors. In the US, this is caused by a combination of deep political divisions and high legislative barriers.

While a US President cannot unilaterally amend the Constitution, they can influence it in other ways. For example, they can issue executive orders that work within the parameters of the Constitution, and they can also appoint federal judges who may interpret the Constitution differently, thereby affecting how it is applied.

In conclusion, while not impossible, amending the US Constitution is an arduous and challenging process, and the document has become increasingly resistant to change over time.

Trump's influence on the Supreme Court

While Trump cannot override the constitutional amendment process, he does have some influence on the Supreme Court.

Trump has expressed his desire to end the long-standing tradition of birthright citizenship in the United States by signing an executive order. However, this attempt to override the 14th Amendment was unsuccessful because executive orders must operate within the parameters of the US Constitution. The Supreme Court has repeatedly affirmed birthright citizenship, and any amendment to the Constitution would require a rigorous process involving approval from both houses of Congress and ratification by a significant majority of states.

Trump has also appointed judges to the federal judiciary, including the Supreme Court, which can indirectly influence the interpretation of constitutional text. These appointments may have a lasting impact on how the Supreme Court interprets and applies the law, even if the text of the Constitution remains unchanged.

The Supreme Court's role in checking presidential power and upholding the rule of law is crucial, especially during a period of democratic backsliding. While the Court has the authority to interpret the Constitution and evaluate the legality of executive actions, it has faced criticism for its decisions and lack of transparency in certain cases.

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The unitary executive theory

Supporters of the unitary executive theory, sometimes called "unitarians", argue that the principle dates back to the founding of the United States. They contend that the President has the power to control all officials in the executive branch, including historically independent positions. This interpretation of the Vesting Clause gives the President unprecedented power to impose their will on every decision in every agency.

The theory first entered public discourse during the Reagan administration, which cited it to justify its actions. The theory has since been championed by conservative justices, the Federalist Society, and the Heritage Foundation. The Trump administration has also embraced the unitary executive theory, using it to guide policy decisions and expand presidential power.

While the unitary executive theory provides a framework for understanding the President's authority over the executive branch, it is important to note that it is not universally accepted and has faced significant legal and scholarly criticism. The Supreme Court has played a role in interpreting the theory and determining the scope of presidential power, with rulings that have both constrained and expanded the President's authority.

Trump's attempts to remain in office beyond his tenure

No president can unilaterally alter, rewrite, or amend the US Constitution. Donald Trump has repeatedly floated the idea of remaining in office after his second term ends in 2029. However, the 22nd Amendment to the Constitution is clear that Trump cannot be elected again. The text of the amendment states that "no person shall be elected to the office of the President more than twice".

Despite this, Trump has proposed constitutional amendments in the past, and there are provisions in the nation's founding documents with which he disagrees. While Trump cannot change the Constitution by himself, he can direct how laws pertaining to constitutional rights are enforced via executive orders. For example, Trump has used executive orders to justify hundreds of actions that would typically require congressional approval or lengthy regulatory review, such as immigration measures, sweeping tariffs, and energy deregulation.

Trump could also pressure Congress to propose and pass constitutional amendments, although this is unlikely to succeed. Another strategy could be to appoint Trump to an executive branch position from which he could still exercise power, similar to the Medvedev-Putin "tandemocracy" in Russia. Alternatively, Trump could follow the example of George and Lurleen Wallace, where the immensely popular George Wallace, prevented by the Alabama Constitution from running for a third consecutive term as governor, chose to have his wife, Lurleen, run for governor.

While the text of the Constitution may remain the same, judges appointed by Trump could interpret it differently. Trump has already nominated one federal judge for a spot on the Supreme Court, and he may appoint more in the future.

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