Topline
President Joe Biden endorsed a constitutional amendment Monday that would specify ex-presidents don’t have criminal immunity from acts undertaken while in office—undoing a recent Supreme Court ruling in favor of former President Donald Trump—though passing an amendment would have to clear a high bar with approval from both Congress and the states, which is unlikely to happen.
People hold anti-Trump signs in front of the US Supreme Court on July 1 in Washington, DC.
Key Facts
Biden endorsed a constitutional amendment that would “make clear that there is no immunity for crimes a former president committed while in office,” adding he “share[s] our Founders’ belief that the president’s power is limited, not absolute,” and Vice President Kamala Harris said in a statement she also backs the proposals.
The proposed amendment comes after the Supreme Court ruled ex-presidents have immunity from criminal charges based on “official acts” they took in the White House, narrowing the scope of Trump’s federal case for trying to overturn the 2020 election.
Democrats in Congress have already introduced a proposed amendment that states no officer of the United States, including presidents, shall be immune from criminal prosecution because their conduct was within the scope of their official duties, except when the Speech and Debate clause that shields lawmakers from some legal liability would apply.
The version of the amendment introduced in the House also states presidents cannot pardon themselves.
The amendment faces very long odds, as constitutional amendments have to clear an even higher bar to make it through Congress than regular legislation: A two-thirds majority would have to approve in both the House and Senate in order for it to pass.
An amendment that makes it through Congress then has to be ratified by the states, requiring approval from three-quarters of states, whether that’s by their legislatures or special conventions convened for the amendments.
Get Forbes Breaking News Text Alerts: We’re launching text message alerts so you’ll always know the biggest stories shaping the day’s headlines. Text “Alerts” to (201) 335-0739 or sign up here.
Crucial Quote
“We are a nation of laws — not of kings or dictators,” Biden wrote in a Washington Post op-ed Monday, arguing the Supreme Court’s ruling on presidential immunity went against the U.S.’ founding principle that “no one is above the law.”
What To Watch For
While Democrats have introduced their proposed amendment on immunity in Congress, it remains to be seen whether Biden’s endorsement will help it move forward. Even if it does it’s unlikely to pass, given the GOP controls the House and Democrats only hold a narrow majority in the Senate. House Speaker Mike Johnson, R-La., said Monday any court reform efforts were “dead on arrival” in the House, likely dooming the chances of the constitutional amendment along with other proposed reforms. Senate Majority Leader Chuck Schumer, D-N.Y., has not yet commented on Biden’s calls for a new constitutional amendment, though he has previously said he wants to enact legislation that would classify Trump’s actions trying to overturn the 2020 election as “unofficial acts” that could still be prosecuted. Sen. Dick Durbin, D-Ill., who chairs the Senate Judiciary Committee where the constitutional amendment would originate, commented Monday on Biden’s separate endorsement of a binding code of ethics for the Supreme Court, but did not comment on the push for a constitutional amendment on immunity.
Big Number
56%. That’s the share of voters who disapprove of the Supreme Court’s decision granting Trump some immunity, according to a Fox News poll conducted July 7-10. That includes a majority of Democrats and Independents (82% and 68%, respectively), while only 27% of Republicans were against the ruling.
Tangent
In addition to his push for a constitutional amendment on presidential immunity, Biden also endorsed 18-year term limits for Supreme Court justices, which similarly remains a longshot to pass. He also backed Democrats’ efforts to force a binding code of ethics on the court as justices have faced a series of ethics scandals, which lawmakers on the left have repeatedly failed to pass.
Chief Critic
Trump has not yet commented on Biden’s formal endorsement of the immunity amendment and other Supreme Court reforms, but the ex-president previously criticized the proposals when reports first surfaced that Biden was considering backing the proposals. “The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” Trump wrote on Truth Social earlier in July.
Key Background
Biden endorsed reforms to the Supreme Court Monday after long signaling he was resistant to broad changes to the court, even as public trust in the high court has fallen amid a series of controversial rulings and ethics scandals. The president convened a commission to study potential reforms to the court early in his presidency but has declined to take any action on its recommendations until now, with the Washington Post reporting in mid-July that he first consulted with legal expert Laurence Tribe about changes to the court less than an hour after the Supreme Court issued its immunity ruling. Justices ruled 6-3 in early July that Trump and other ex-presidents have immunity from criminal prosecution for their “official acts” in office, limiting the scope of Trump’s federal election case and likely affecting his other criminal cases. The ruling was blasted by the left, and Justice Sonia Sotomayor wrote in her dissent that the majority’s opinion “reshapes the institution of the Presidency” and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
