How to Legally Remake the Government
Trump's DOGE may be unconstitutional, so let's hold a constitutional convention
In 1973, historian Arthur M. Schlesinger, Jr. published “The Imperial Presidency,” a book that made the case that the power of the American presidency had grown beyond its constitutional parameters. Presidents were increasingly skirting the Constitution’s built-in checks and balances, the author argued. Further, presidents were claiming wider and wider latitude when it came to Congress’ constitutionally delegated war powers.
Schlesinger released his book during the Nixon administration, which was obviously quite familiar with the abuse of executive authority. But, every president since at least Ronald Reagan in 1980 has expanded the reach of the executive branch. Schlesinger’s warnings were ignored, outside of academic circles.
This brings us to Donald Trump 2.0. While his predecessors over the past four or five decades have been progressively dismantling checks on presidential authority, Trump took office last month apparently prepared to finish the job. And, true to form, where his peers approached the task with crowbars and sledgehammers, Trump came in with a wrecking ball.
This is the context within which the start of Trump’s second term should be understood. The assertion of increased executive branch prerogative is nothing new. What is unprecedented is the scale and the scope of the actions being taken, not to mention the accompanying demolition of norms and conventions.
Trump is trying to remake the federal government and, to an extent, America, through the exercise of presidential power. Though the use of executive orders and other actions, he’s attempting to govern as a unitary executive, cutting Congress out of the process as much as possible.
For starters, the “Department of Government Efficiency,” (DOGE) led by Bro-in-Chief Elon Musk, doesn’t officially exist. The “necessary and proper” clause, contained in Article I, Section 8 of the Constitution, clearly reserves to Congress the authority to create new federal departments.
The Trump team argues that DOGE is not a Cabinet level department and has a firmly established sunset date of July 4, 2026. And, technically, the administration is correct. DOGE represents a rebranding and retasking of President Obama’s United States Digital Service (USDS), which was launched in 2014 to improve the delivery of online government services and the experiences of people using relevant federal websites.
Trump has taken the infrastructure of this mundane office and retooled it into a government renovation department. Hence, Musk’s regiment of tech-nerd foot soldiers have been crawling all over the federal bureaucracy, eliminating or downsizing entire government agencies, terminating or proposing buyouts to civil servants, cutting or rescinding statutorily directed spending, axing regulations, accessing classified information and more.
DOGE has employed Trump’s go-to strategy of shock and awe in its operations. Also known in Trump-world as “flooding the zone,” it entails overwhelming opponents with the sheer volume of your actions. It’s the political version of the tech ethos that, uncoincidentally, has thus far defined Trump’s second term: “move fast and break things.”
Much or even all of what DOGE is doing may be unconstitutional, and while its actions may be designed to circumvent Congress, there is another branch of government to which Trump’s opponents can appeal. Fourteen blue states, along with several unions, have filed lawsuits against DOGE.
But, court cases take time to be resolved. And, yes, judges can put a stay on executive orders, but they can’t freeze all of them. In the meantime, Trump is moving fast and breaking things—and remaking government and, to an extent, America.
What Trump and Republicans are attempting to do is what all partisans are trying to do: build their partisan dreamworld. Trump is just trying to do it by executive fiat. He’s pursuing the same objective as everyone else in politics, on either side. He’s simply trying to take the shortest shortcut imaginable to reach that goal.
However, there is another way that Trump could transform the government and the country, and it probably be quite popular—if he rallied the country behind it. Best of all, it would be constitutional.
Trump should call for a constitutional convention.
There are two ways to amend the Constitution, as established by Article V. The first, which is restricted to single amendments, requires the support of two-thirds of both houses of Congress and three-fourths of state legislatures (38). The second, which allows for open proposal of amendments, is for two-thirds of state legislatures (34) to call for a constitutional convention, where multiple amendments can be proposed. Three-fourths of states must then ratify whatever amendments emerge in order for those amendments to pass.
Trump could easily get red-state statehouses behind the effort, but with a little barnstorming of the country (which he loves to do anyway), especially in select purple and blue states, he should be able to convince two-thirds of states to sign on. Democrats, like Republicans, independents and everybody else, would certainly appreciate more clarity in certain portions of the Constitution. Everyone knows it could use an update.
And, through the convention, Trump may be able to get some of his policies enacted into the highest law of the land. And Democrats, independents and everybody else would have the same opportunity.
A constitutional convention hasn’t happened since the original one in 1787, when the Constitution was ratified. Historically, amendments have always been proposed via the single amendment method, although various states have, at various times and related to various issues, called for constitutional conventions to be held.
A common argument against constitutional conventions is the prospect of a “runaway convention,” which could lead to unpredictable and destabilizing changes to the nation’s foundational document. However, this seems unlikely since the approval of 38 states is necessary for an amendment to pass, which would mean that it would require the support of a strongly bipartisan coalition of states (Republicans currently hold the legislatures in 28 states).
But, even if this fear were to materialize, it would still be better than the status quo. Better that we have a Constitution with runaway changes than a Constitution that can be run all over, while it lies there lifeless, devoid of any vitality in contemporary America.
Portions of this post have been inspired my book The Anti-Partisan Manifesto: How Parties and Partisanism Divide America and How to Shut Them Down. Buy the book here. For the time being, it is only available digitally. To read, download the Kindle app to your phone, your iPad or tablet, your Kindle device or your computer.
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