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A Constitutional Amendment to Limit Executive Overreach

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Over the past year, Americans have learned that many of the supposed restraints on executive branch power are defined only by norms rather than written law, and that legal action for redress is often prevented by questions of standing, sovereign immunity, narrow standards for injunctive relief, and timelines for review that can render litigation impotent in the face of a normless government willing to act pretextually. The proposed constitutional amendment does little more than restore in writing what has been implicit in the Framers’ intent and in the expectations of the American people.

The executive branch is expected to comply with the law, but what recourse does Congress have if the executive should thumb its nose at the law? Under Article I of the proposed amendment, Congress would have standing to bring civil actions to ensure compliance with appropriation laws, statutory directives and constitutional limitations on executive power.

Under the Fourteenth Amendment, citizens may sue state officials who violate their rights, yet Americans may be surprised to learn that no similar right exists with respect to federal officials. Article II of this amendment would close this gap, allowing citizens to sue federal officials who violate constitutional limits or clearly established law. It doesn’t eliminate qualified immunity—officers can still defend themselves by proving their actions were authorized. It doesn’t create unlimited liability—governments may indemnify their employees. What it does is ensure that when federal officials harm you by breaking the law, you have a remedy, just as you do when state officials violate your rights. This is the accountability the Framers intended, and that most Americans assume already exists.

What do we do when a federal officer murders a citizen and the government refuses to prosecute its own officer? In Article III of this amendment, states have concurrent jurisdiction to prosecute federal officers for common law crimes and violation of constitutional rights within their territory. A federal court may decide first if the conduct was lawful under federal law and within the scope of official duties. If either element is not established, the state may prosecute.

Article IV would give governors standing to challenge federalization of the National Guard, and prevent the deployment of federal National Guard units for law enforcement without the state’s consent, unless there is a constitutional violation to be remedied.

Article V allows states to use State Defense Forces to prevent unconstitutional federal action that would cause irreparable harm, protecting its citizens pending expedited judicial review of the proposed federal action.

Together, these amendment articles give various actors (Congress, the states, private citizens) the ability to defend themselves legally and physically from lawless executive action, without abandoning qualified immunity for officials or compromising the supremacy of federal law. Articles I-IV shift the burden of proof to the executive branch to demonstrate lawful authority, rendering impotent those who would thwart the law by lying shamelessly. While our Constitution to date has assumed virtuous actors, this can no longer be safely assumed, unfortunately. Just as the Civil War amendments were necessary to prevent malfeasance by state governments, so this amendment is needed to prevent disregard of the separation of powers by an amoral executive branch.

A CONSTITUTIONAL AMENDMENT TO RESTORE ACCOUNTABILITY FOR EXECUTIVE LAWLESSNESS
ARTICLE I: CONGRESSIONAL STANDING AND ENFORCEMENT
Section 1: Congress shall have standing to bring civil actions in federal court to enforce compliance with appropriations laws, statutory directives, and constitutional limitations on executive power. A majority vote of either chamber shall be sufficient to authorize such suits.
Section 2: Such actions shall receive expedited judicial review, with district court decisions required within 90 days and direct appeal to the Supreme Court. Courts may not dismiss such actions on grounds of political question, mootness, or lack of concrete injury.
Section 3: When Congress establishes a prima facie violation of law or constitutional limits, the burden shifts to the executive branch to demonstrate lawful authority for the challenged action.

ARTICLE II: ENFORCEMENT OF CONSTITUTIONAL AND STATUTORY LIMITS ON FEDERAL POWER
Section 1: No person acting under color of federal authority shall deprive any person of rights, privileges, or immunities secured by this Constitution or by Acts of Congress, nor shall any such person violate clearly established statutory limitations on federal power.
Section 2: Any person injured by violation of Section 1 shall have a civil action for damages, injunctive relief, or other appropriate remedy against the responsible federal officer or employee in their individual capacity.
Section 3:
(a) In actions brought under this Article, federal officers may assert as a defense that their conduct was authorized by clearly established law at the time of the action.
(b) The burden of proving such authorization rests with the defendant officer.
(c) Good faith belief in legality shall not constitute a defense if the violation was of clearly established law that a reasonable officer would have known.
Section 4:
(a) Prevailing plaintiffs under this Article shall be entitled to reasonable attorney’s fees and costs.
(b) Courts may award fees to defendants only upon finding that the plaintiff’s action was frivolous or brought in bad faith.
Section 5: The United States and the several States may establish procedures for indemnification of officers held liable under this Article. The availability of indemnification shall not be a defense to liability.
Section 6: Congress shall have power to enforce this Article by appropriate legislation, including establishment of procedures, remedies, and limitations periods, but may not eliminate or substantially restrict the causes of action created hereby.

ARTICLE III: STATE PROSECUTION OF FEDERAL OFFICERS
Section 1: States retain concurrent jurisdiction to prosecute federal officers and employees for common law crimes and violations of constitutional rights committed within state territory.
Section 2: Federal officers may remove such prosecutions to federal district court solely to determine whether (a) the charged conduct was within the scope of official federal duties, and (b) the conduct was lawful under federal law. The burden of proving both elements rests with the federal officer.
Section 3: If either element is not established, the case shall be remanded to state court. If both elements are established, the case shall be dismissed, provided that federal prosecution for the same conduct is commenced within 180 days, or the state may resume prosecution.

ARTICLE IV: PROTECTION OF STATE NATIONAL GUARD
Section 1: The President may order a state’s National Guard into federal service only:
(a) With the consent of the state’s Governor; or
(b) Following authorization by majority vote of Congress; or
(c) In response to actual invasion or imminent threat to national security.
Section 2: Governors shall have standing to challenge federalization orders in federal court, with expedited review required within 72 hours. The federal government bears the burden of demonstrating that one of the conditions in Section 1 is satisfied.
Section 3: Federalized National Guard units may not be deployed for domestic law enforcement within any state without that state’s consent, except pursuant to specific congressional authorization identifying the constitutional violation being remedied, or court order following a finding of constitutional violation.

ARTICLE V: STATE DEFENSE FORCES
Section 1: States may organize, train, and maintain defense forces not subject to federal military authority, in numbers not exceeding twenty percent of their National Guard strength, for protection of state territory, institutions, and constitutional order.
Section 2: When a Governor, with approval of a constitutional majority of the state legislature, certifies that federal action within the state appears to violate the Constitution and that immediate interposition is necessary to prevent irreparable harm, state defense forces may act to prevent implementation of such federal action pending judicial review.
Section 3: Upon such interposition, the challenged federal action shall be stayed within that state. The matter shall receive expedited judicial review commencing within 72 hours in federal district court, with mandatory appeal to the Supreme Court within 30 days.
Section 4: If courts uphold the federal action, the state shall immediately comply. Continued resistance after adverse final judicial ruling shall subject state officials to federal prosecution. If courts invalidate the federal action, the federal government shall bear all costs of litigation and any damages resulting from attempted enforcement.

Learning the Wrong Lesson from the Holocaust

On October 7, 2023, about 6000 militants from Hamas and various paramilitary groups invaded Israel from Gaza, following a barrage of 4000–5000 missiles. The militants killed 1,195 people, most of whom were civilians, murdered in sometimes horrific manners preceded by abuse or torture. The indiscriminate massacres included non-Israeli foreigners among the victims. For a world long inured to Arab-Israeli violence, this was a new level for the Gazan militants, both in its scope and its wanton cruelty. The term “terrorism” hardly captures the utter lack of moral restraint exhibited by the attackers, who were instructed to kill as many people as possible.

As always, both sides in the conflict can point to outrages committed by the other side to justify their own excesses. In this instance, Hamas claimed it was responding to the long-standing blockade of Gaza, the encroachment of Israeli settlements, and threats to the al-Aqsa mosque. Even if these claims had merit, any international sympathy toward the Gazan plight was seriously vitiated by shock toward this murderous campaign. No ethical person would want to defend such barbarism.

In the ensuing months, a politically struggling Prime Minister Netanyahu found popular support for retaliatory actions against Hamas and its indirect supporters, particularly Hezbollah in Lebanon. Unlike what one might expect in the U.S. or other Western countries, Netanyahu did not enjoy a popularity boost from the war, which is why he continually postponed elections his party would surely lose. Israelis are accustomed to war as a fact of life, so it cannot be used as a distraction. Many blamed Netanyahu for this appalling failure of security and intelligence, and later for the failure to secure the release of hostages.

After initial successes in destroying the leadership and infrastructure of Hamas and Hezbollah, including their tunnel network, Netanyahu did not relent. He continued to demolish civilian areas of Gaza, including hospitals, and imposed a total blockade to the point that Gazans went months without any food aid in 2025. The deliberate systematic destruction of sources of food and medicine, wanton killing of civilians and reduction of entire areas to rubble, were not new to Netanyahu and his Likud predecessors. Again, the scale was greater than ever and disproportionate to the offense. To date, over 67,000 Palestinians have been killed in Gaza, including 450 deaths from starvation. Even accepting Netanyahu’s claim that 16,000 of these were militants, that means over 75% of the dead are civilians. This does not even count the various maimed, wounded, sick, hungry and displaced.

Netanyahu and others in his government have long considered themselves justified in war without mercy against the Palestinians. They do not recognize any legitimacy to aspirations for Palestinian statehood, and have long opposed the two-state solution. The demographics of Palestine imply that their intent is to subjugate or exterminate the Palestinians, since a one-state Palestine would not have a Jewish majority. The ethnic breakdown is roughly 7 million Jews and 7 million Arabs in Palestine as a whole, including Israel. In Israel proper, there are 7 million Jews and over 2 million Arab Israeli citzens. In the Gaza strip there are another 2 million Arabs, and in the West Bank there are about 3 million. Keeping the Arab populations divided is the only way Israel can maintain its numerical dominance.

Some ministers have decried the Palestinians or Gazans as rats and other dehumanizing epithets, and have used overtly genocidal language in their intentions. While the actions of the Israeli government may meet the legal definition of genocide, it need not be the case that they intend, at least for now, to exterminate the Palestinian population completely, though they have seriously contemplated a total ethnic cleansing, i.e., expulsion of Gazans from the entire area. Even if they ultimately relent from such extremes, one may wonder how the Jews, themselves the victims of the most horrific genocide in memory, should do anything remotely resembling this crime?

Many of the most militant Jews in Israel were raised or educated in the United States, or influenced by those who were. They are familiar with the militarist bravado and sense of racial entitlement that is common in the U.S. “Hit them before they hit us,” aligns not only with the U.S. imperialist justification for destroying much weaker opponents as though it were an act of courage, but also with a strain of U.S. thinking about the Holocaust. The Austrian-born Bruno Bettelheim, in his introduction to Dr. Miklos Nyiszli’s Auschwitz: A Doctor’s Eyewitness Account (1960), lamented how the Jews misguidedly thought that by carrying on silently they could escape persecution. Instead, this passivity emboldened their persecutors, so that they could count on their captives marching into their ovens. Violent resistance, when it occurred, succeeded in killing some of the captors, but such resistance was surprisingly infrequent. Fictional fantasies of Holocaust revenge violence pepper American television and film, most notably in Tarantino’s Inglourious Basterds (2009). “Never again,” in this view, seems to mean that we will not march like lambs again, but will act like lions.

This is the wrong lesson to take from the Holocaust. The idea that humans are divided into predators and prey, and it is better to be the predator or “master,” is a distinctive pathology of Nazi thought, founded on an anthropologically false notion of human origins. Emulating the Nazis on this point will not stop there, as once one adopts the habit of behaving like a predator, he will adopt the associated practices of predation. Instead, the more valuable lesson would have been to recognize what was happening in the early stages. The first step was always to dehumanize people, to strip them of their dignity and act as if social niceties were irrelevant. Once you take away someone’s human dignity, it is a short step to saying you may do anything to them.

“This is war,” is the perennial excuse for denying human dignity to others. The Geneva Conventions were introduced to take away this excuse, and it is telling that the current so-called U.S. Secretary of War speaks of the rules of engagement imposed by these conventions so disparagingly. Fascistic regimes invariably characterize whoever they wish to persecute in martial terms. This race or political party is a traitor or an enemy within. Immigrants are invading our country. An immoralist sees war everywhere, because that gives cover to his freedom from moral restraint.

The Palestinian leadership has not done itself any favors, to be sure. From the corrupt government in the West Bank to the terrorist-affiliated government in Gaza, there are good grounds for being hesitant to give the current Palestinian Authority unconditional recognition as a peer sovereign nation. Those who protest the war crimes of Israel against the Palestinians may find it difficult to distance themselves from the corrupt and violent organizations that enjoy popular support, if only because they fight back. The use of victimhood to justify criminality is not limited to the Israelis.

Netanyahu and other militaristic Zionists have cynically employed the accusation of anti-Semitism against any who would dare criticize Israel or support Palestinian autonomy. It is, to be sure, unavoidable that in any broad-based opposition to Israel, there will be some anti-Semites, especially in the Arab world where there is no such taboo against anti-Semitism or racism as there is in the West, for they are further removed from the experience of the Holocaust.

Neither Jews nor Muslims, nor many secular persons raised in those communities, place the same value on mercy toward enemies as is found in the West, following the twin legacies of Greco-Roman and Christian ethics that have informed modern liberalism. Thus there is somewhat less incentive for restraint in the Middle East than in the West, though the value of mercy is being eroded in the U.S. as well. Liberal-minded advocates of the Palestinian cause may find themselves aligned with the merciless while pleading for mercy.

We cannot expect even the simplest subtlety to be grasped by a U.S. President and Cabinet that is aggressively anti-intellectual and devoid of any principle besides power. When the current President sees a conflict between the strong and the weak, he negotiates with the strong and forces the weak to accept the settlement. This absolves him from the necessity of understanding anything about the conflict. Simplistic mentalities must identify “good guys” and “bad guys,” then side with the good guys to beat the bad guys. A conflict where neither side is fully good does not fit the formula, but they will force a fit anyway.

The result of this forced Manichaeism is to demonize, by extension, anyone who advocates for the wrong side, in this case the Palestinians. Most of the administration’s aggression against universities has been justified, at least pretextually, on the grounds that they tolerate or encourage anti-Semitic behavior. This accusation is also used as a pretext to deport anyone who criticizes Israel or advocates for the Palestinians. To consider this reasonable is to exhibit weapons-grade ignorance about the Arab or Muslim world. It would be practically unconscionable for anyone from that area not to advocate for Palestine or oppose Israeli aggression. It would be like expecting black Americans not to oppose white supremacist groups. Thus this ban on pro-Palestinian speech, apart from being unconstitutional, has the effect of restoring the so-called Muslim ban attempted during the first Trump presidency.

Immigrants are now afraid to speak on the Palestinian issue, for fear of deportation, which is exactly what the Nazi-emulating Trumpsters want and delight in. Like all cowards, they take pleasure in the fear they cause in those who have much less physical force at their disposal. Like all ignoramuses, their only eloquence is through truncheons and gun barrels.

The Duty to Receive the Stranger

In the United States, discussions of immigration start from the assumption that a nation has a sovereign right to refuse admittance to anyone, and that admittance is at its discretion. Such a stance fails to recognize that all migrants, regardless of legal status, are rights-bearing humans. The only legal concession that the United States makes to this reality is that those who are present in the United States are entitled to Due Process and First Amendment rights. Even this has not been explicitly confirmed by Supreme Court decision, though it is a widely held opinion, professed publicly even by the late Justice Antonin Scalia. Lately, even this modicum of decency has been discarded by the current regime, which actively seeks to deny due process and persecute speech, even in defiance of court orders.

In fact, due process does not adequately encompass the international rights that all humans bear. The first exponent of what we now call international rights was Francisco de Vitoria (c 1483-1546). This Spanish theologian notably opposed absolute sovereignty, holding that even sovereigns must respect the law of nations and human right. A sovereign cannot wage war whenever he pleases, but must have a cause that is just, not merely in his own eyes, but in the consideration of many wise men, and that is defensive. A mere difference in religion is not a just cause, nor is the desire for territory or the glory of a prince. A sovereign is also obligated to treat his subjects well. If he denies them their basic right and becomes a tyrant, other nations may and should wage a just war on behalf of his subjects against him.

Vitoria started from the position that humans have a natural right of society and communication, from which he derived a social solidarity of humankind. This solidarity does not permit that any one group should have absolute rights over others. Nor does the division of the world into particular polities and private holdings abrogate this natural right of society. Thus even sovereigns are bound to permit people of all nations to navigate the seas and rivers, to grant the use of ports necessary to such navigation, and to permit people to trade with those of any nation. People also have the right to travel or migrate anywhere in the world. This natural right, which antecedes the existence of nations and indeed gave birth to them, cannot be limited unless some positive harm results from it. Note that the default assumption is that the sovereign must permit migration. Some reason must be given for limiting it. The right of the people to migrate is primary.

This change in perspective also requires a change in attitude toward the dignity of those of other nations. They are not some second-degree humans pleading for admission. They are fully equal in dignity, and have a right that must be respected. Thus Vitoria famously considered that the chieftains of the Indies had sovereign rights equal to those of European princes, and were true lords of their territories before the arrival of the Spanish. They remained rights-bearing subjects even after the conquest, and were owed good treatment and respect for their persons and property. These were, needless to say, controversial positions at the time, but incredibly they prevailed to the extent that slavery was abolished in New Spain. Vitoria reminded the Spaniards that they were the migrants to another country, and just as they had been admitted, so too must they respect the rights of others.

An analogous situation appears in the southwestern United States, a territory where southerners first entered Mexico as migrants, and eventually took over by conquest. Now they should respect the rights of those who remained in the new territories, as well as any new inhabitants who should migrate. Vitoria says that the sovereign is obligated not merely to admit foreigners, but to receive them well, as a precept of natural law. They must be treated humanely, and should not exile guests who have committed no crime.

The universality of the ancient right of hospitality in the civilized ecumene is well attested, and likely familiar to many through Biblical stories. The sacredness of this right, which includes providing food and shelter to the wayfarer, is based on a sense of human solidarity and the need to travel freely across the land to seek subsistence. Humans have always migrated when their homelands are scarce in resources; indeed our very physiology is designed for long-distance travel. It is a monstrous fiction, only lately developed by some countries in the nineteenth-century, that migration without legal approval is itself a crime meriting exile.

Making this adjustment in thinking would require a humiliation of American exceptionalism, the idea that the U.S. should bow to no principle outside its own traditions. Early on, the American judiciary decided that there was no common law binding at the federal level, and that international law could provide no guidance for internal affairs, though the law of nations was indeed respected in matters of commerce and navigation, as well as the law of comity. This generally inward-looking attitude, recognizing no wisdom to be received from without, may seem ironic since our so-called “American” traditions are mostly derived from European culture. Yet we ourselves are in a self-imposed exile from Europe, deliberately cutting ourselves off in many ways in order to set out on our own course. In the last half century, an increasingly integrated world no longer permits this isolation, and those who try to revert to it must resort to ever more brutal measures, even against fellow citizens. The biggest irony is that most of these isolationists profess to be Christians, yet humility is furthest from their hearts and they have forgotten the Biblical precept of treating “strangers” (i.e., foreigners) with compassion and as fellow natives since we were once strangers. (Lev. 19:33-34)

If it was wrong for monarchs to claim absolute sovereignty, subject to no higher moral principle, it is no less wrong for a republic to do so. The American error of claiming absolute sovereignty makes us vulnerable to a moral blindness that can prevent us from seeing tyranny, and even make us welcome it. Such a claim may have seemed alarmist until very recently, but so many of the dictators of the twentieth century claimed to be acting for the good of the people or the nation that we should have alarms sound whenever someone repeats this nativist nonsense.