The surprising aspect of this conclusion is not that the Constitution can be informally amended. That has been the usual way of making revisions. In 1803, the Supreme Court granted itself the power to review laws and overturn them. In 1824, the states tied the electoral vote to the popular vote. Neither of those changes was inscribed on parchment or envisioned by the Founders, but today we can’t imagine our constitutional system without them.
Presidents have been the authors of many informal amendments. George Washington set enduring precedents such as the two-term limit on presidential service (a norm so embedded that after Franklin D. Roosevelt broke it, it was written into the formal Constitution). Andrew Jackson reimagined the president as the direct representative of the people. Abraham Lincoln ruled out secession. [...]
The impeachment mechanism was intended to be a check on presidential misbehavior; instead, post-Trump, it is now more like a partisan permission slip, allowing presidents to do as they please provided they keep their party in line. In other words, from now on, presidents should assume that the way to hold on to power is to stay not on the right side of the law but on the right side of their party. To put it mildly, that is not what the Founders intended. [...]
The president has his own superpower: unconstrained, unlimited authority to pardon and commute federal crimes. In recent years, presidents, fearing political blowback if a pardoned criminal were to commit another crime, have become more and more parsimonious in their use of pardons to correct even blatant injustices. That’s a loss for the justice system. Some presidents made fishy-looking pardons, but underuse of pardons became a much bigger problem than their overuse.
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