Block on Trump's Asylum Ban Upheld by Supreme Court
Contrary to certain internet rumors, President Donald Trump hasn't altered the U.S. Constitution. Yet. But could he if he wanted to?
Trump has proposed constitutional amendments in the past and it's no secret that there are provisions in our nation's founding documents with which our new president disagrees. So the question with President Trump is not so much whether he would like to change the Constitution, but whether he can.
No president can unilaterally alter, rewrite, or amend the Constitution. What presidents, as the head of the executive branch, are able to do is direct how laws pertaining to constitutional rights are to be enforced, via executive orders. For example, former President Barack Obama couldn't rewrite the Second Amendment, but he could take executive action on firearm licensing requirements and background checks for gun purchases.
Yet even executive orders have constitutional limits, as President Trump has learned. Presidents, and the executive branch, must still comply with the Constitution, and therefore can't change it by themselves.
Right now Republicans control both the House and the Senate, so Trump could pressure Congress to propose and pass constitutional amendments. But even that isn't a slam dunk. Trump would need two-thirds of both the House and the Senate to approve a constitutional amendment. And even with the largest Republican majority since the 1930s (54 out of 100 Senators and 247 out of 435 Representatives), the GOP still probably lacks the numbers to push a constitutional amendment through.
Even if Congress approved an amendment, 75 percent of the states would need to ratify it. Trump won 30 of the 50 states in the 2016 election, or 60 percent.
Through Constitutional Conventions
The odds look better, though, if you look at which states have Republican-controlled legislatures: 33 out of 50. And only 34 would be needed to convene a constitutional convention. Article V of the U.S. Constitution provides an alternative to congressional proposition for amending the Constitution, allowing a special convention summoned by Congress on the petition of two-thirds of the state legislatures.
As the New York Times pointed out, the powers of a state-led constitutional convention could be expansive:
Article 5 places no limits on a convention's power. Some experts note that the Constitution itself arose from a convention called to amend its predecessor, the Articles of Confederation -- and tore up the document and started from scratch. That convention even scrapped the Articles' terms of ratification -- unanimous approval by the states -- and substituted a lower barrier, three-fourths of states.
Even with this broad authority, three-fourths of state legislatures or state conventions (38 states out of 50) would still need to approve any amendments proposed during a constitutional convention in order to ratify them.
Through the Courts
Federal courts don't write or rewrite the Constitution, but they do interpret it and decide whether legislation or executive actions comply with it. And President Trump can appoint judges to the highest court in the land. Trump has already nominated one federal judge for a spot on the Supreme Court, and may appoint more in the future. Trump can also fill slots on federal district, appeals, and international trade courts. (Obama installed 327 such judges during his two terms.) So while the text of the Constitution could remain the same, judges appointed by Trump could interpret that text differently than those previous.
The Constitution itself, while malleable, is fairly resistant to change. Amendments are hard to come by and much, if certainly not all, of its meaning is by this point agreed upon. But that doesn't mean that President Trump can't have a profound effect on the Constitution during his tenure.