It’s official: President Joe Biden is calling for Supreme Court reform. Among his three proposals is a constitutional amendment barring criminal immunity for presidents.
Following the Supreme Court’s ruling bestowing broad immunity in Trump v. United States, Biden wrote in a Washington Post op-ed on Monday:
I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators.
As opposed to his term limits and enforceable ethics code proposals, this one specifically pushes for a constitutional amendment, which “will state that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President,” according to a White House fact sheet.
So, how could an amendment happen? Article V of the Constitution states:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . .
There have been 27 amendments, with the most recent one, regarding congressional pay, taking effect in 1992. And while there are different procedural ways to amend the Constitution, a National Constitution Center analysis notes that the method used for every amendment so far is that: Congress proposes an amendment to the states; the states must then decide whether to ratify the amendment. But in order for Congress to propose an amendment, two-thirds of each House of Congress must vote for it. And then three-quarters of the states must ratify the amendment before it is added to the Constitution.
So it’s not an easy process — nor should it be. And as long as Republican politicians are positioned to oppose diluting the Republican supermajority court’s power, then any proposed reform, no matter how reasonable, faces challenges. But Biden’s proposal, which he wrote in his op-ed “are supported by a majority of Americans” when it comes to all three proposed reforms, has started that national conversation. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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