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On Wednesday, fifty House Democrats, including Alabama Congresswoman Terri Sewell, proposed a new constitutional amendment.
The proposed 28th Amendment is a reaction to the Supreme Court’s ruling on Trump v. United States.
In the controversial majority opinion from earlier this month, the conservative bloc of six justices found presidents have “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority” and “presumptive immunity for all official acts.”
Following the ruling, there was immediate and sustained outrage from many centrist and left-leaning politicians, intellectuals, and organizations, including the Alabama NAACP. Some hypothesized the president could now order Navy Seals to execute their political opponents without any risk of future prosecution.
Justice Ketanji Brown Jackson wrote that the “very idea of immunity stands in tension with foundational principles of our system of Government” in her dissent.
Sewell was the only member of Congress from Alabama to criticize the ruling when it was first announced. She said it gave a “green light to future presidents to abuse their power” while Alabama Republicans claimed the ruling “upheld the Constitution” and hindered a supposed anti-Trump witch hunt.
In a press release announcing she had cosponsored the new amendment, Sewell said the House Democrats were “taking action to reverse the Supreme Court’s anti-democratic decision to grant presidents criminal immunity.”
“Our nation was founded on the idea that no one is above the law, not Donald Trump or any other president,” she stated. “America is a nation of laws, not kings, and we must be able to hold presidents accountable for criminal behavior.”
The proposed amendment would make it so no officer of the United States is “immune from criminal prosecution for any violation of otherwise valid Federal law … on the sole ground that their alleged criminal act was within the conclusive and preclusive constitutional authority of their office or related to their official duties.” It would not apply to the immunity explicitly granted to representatives and senators by the text of the Constitution.
The amendment would also be “self-executing,” so Congress wouldn’t have to pass any laws for it to be enforced, and it would bar the president from pardoning themself.
But in order for any potential constitutional amendment to be adopted, it must be supported by a two-thirds supermajority in both the House and the Senate, or by a convention called by two-thirds of states. Then thirty-eight states have to ratify the amendment.
The last constitutional amendment to be ratified, the 27th, was proposed by Congress in 1789 but only successfully ratified over two hundred years later in 1992. Because the amendment limited the ability of members of Congress to raise their own salaries, it won wide bipartisan support and was ratified by forty-six states.
But support for the ruling in Trump v. United States is largely split along partisan lines. With Republicans usually in control of around half of Congress and a slim majority of state legislatures, this would-be 28th Amendment is almost certain to be dead on arrival.
