Bipartisan Suggestions For Constitutional Change

[W]e convened three teams of well-known law professors — conservative, libertarian and progressive — to draft new constitutions from scratch. All three teams converged around basic reforms, including the need to strengthen congressional oversight of the president and to increase Congress’s control over federal spending and regulations. Encouraged by this consensus, the three teams gathered together for a Zoom convention in August to see if they could agree on specific amendments to the existing Constitution. And after a week of dialogue, deliberation and compromise, the ideologically diverse delegates agreed on proposals for five pathbreaking amendments: 

• The 28th Amendment would eliminate the natural-born citizenship requirement for the presidency. If the amendment passed, Henry Kissinger and Arnold Schwarzenegger could run for president. 

• The 29th Amendment would allow for legislative vetoes of executive and regulatory actions. All three teams shared concerns about an imperial presidency and a runaway administrative state, typically a conservative and libertarian bugaboo. And they all found a solution in resurrecting the legislative veto, which allows Congress to negate executive actions by majority vote. Congress exercised this power from 1932 until the Supreme Court struck it down in 1983, a decision that the delegates’ amendment would overrule. 

• The 30th Amendment would seek to avoid partisan impeachments while making it easier to remove dangerous presidents. It would reform the presidential impeachment process by replacing “Treason, Bribery, or other high Crimes and Misdemeanors” as cause for impeachment with “serious criminal acts, or for serious abuse of the public trust.” In other words, not all crimes would be impeachable and not all impeachable conduct would be criminal. And while the current Constitution requires a majority of the House to impeach and two-thirds of the Senate to convict, the amendment would change both thresholds to three-fifths, making it harder to impeach but easier to convict. 

• The 31st Amendment would set 18-year term limits for Supreme Court justices, with staggered terms allowing for a vacancy every two years. Thus each president would get to appoint two Supreme Court justices per four-year term, regularizing and de-politicizing the Supreme Court confirmation process. It would also require the Senate to vote on all nominees. (In other words, no ignoring Merrick Garland.) If a sitting justice died or left the court, the president would nominate a successor to fill out the end of that term. 

• The 32nd Amendment would make proposing and ratifying future amendments a little easier. Congress could propose amendments by a three-fifths vote of both Houses (down from two-thirds), and amendments would become law when ratified by two-thirds of the states (down from three-fourths). The delegates also added an alternative, population-based amendment track, so that small states couldn’t block overwhelming majorities from changing the Constitution. On this other track, states representing two-thirds of the national population could force Congress to propose amendments, and states representing three-fourths of the population could call a Constitutional Convention themselves. And all proposed amendments would go into effect if ratified by states representing three-fourths of the population.

Via the Washington Post.

The language of the proposed 29th Amendment is as follows:

AMENDMENT XXIX: LEGISLATIVE VETO 

Congress may by law provide for a veto, by majority votes in each of the Houses of Congress, of actions taken by the executive department, except actions adjudicating the applicability of a statute or regulation to a person. 

A failure by Congress to act pursuant to such a law shall not affect any judicial determination as to whether any law, or any actions of the executive department, are valid or enforceable. 

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The proposed 28th Amendment is a no brainer. 

The 29th Amendment would be fine, but wouldn't make much of a difference and would basically only be invoked when the President was of a different political party than a majority of both houses of Congress. 

The 30th Amendment is an improvement, and so is the 32nd Amendment that is suggested. The 32nd Amendment would probably, indirectly, lead to the adoption of a popular vote for President in lieu of the Electoral College.

I'm not convinced that the 31st Amendment is the right solution although it isn't the worst possible approach. The status quo option of allowing Congress to increase the size of the U.S. Supreme Court is better given how far out of kilter the U.S. Supreme Court has gotten. 

Reviewing the proposed language of the amendment which would also make other appointments more difficult reaffirms my sense that this proposal is a bad idea. The full text of the proposal is as follows, and I have put in bold the portions that I agree with and in strikeout the portions that I disagree with:

AMENDMENT XXXI: APPOINTMENTS

This amendment shall supersede Article II, § 2, para. 2 and Article III, § 1 of the present Constitution: 

§ 1. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided that three fifths of the Senators present concur; and shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the supreme and inferior courts, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. 

Nominations shall be deemed to have received the advice and consent of the Senate unless disapproved by majority vote within three months of the nomination; but any Senator shall have the right to bring any nomination to the floor for debate and vote prior to that time. Any nomination made within the last three months of the President’s term shall lapse at the end of that term, unless sooner approved by the Senate. 

§ 2. The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges of the inferior courts shall hold their offices during good behavior. Congress may by law provide for a process within the judicial department for the suspension from duty of inferior court judges on grounds of disability. Both the judges of the supreme and inferior courts shall, at stated times, receive for their services a compensation, the real value of which shall not be diminished during their continuance in office. 

There shall be nine judges of the supreme court, who shall hold their offices for staggered terms of eighteen years, such that every two years there shall be a vacancy. In the event of a vacancy resulting from death, resignation, impeachment, or other inability to perform the duties of the office, a new judge shall be appointed for the duration of the term only. After a term of office has expired, the judge whose term has expired may elect to sit on an inferior court during good behavior, which court is to be determined by the Chief Justice or as Congress shall direct.

After this article is ratified, the senior-most judge currently serving on the supreme court, calculated by time served on the court, shall retire by the next presidential inauguration. The President after said inauguration shall nominate a successor. Every two years thereafter for sixteen years, the most senior remaining judge shall retire by January 20, whose successor shall be nominated by the sitting President after that date. In the event of a vacancy resulting from the death, resignation, or impeachment of a judge of the supreme court sitting as of the time this article is adopted, a new judge shall be appointed for the duration of the term that would have otherwise elapsed according to this section.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.