Nine months into his second term, there is no doubt but that the implicit constitution that President Trump is operating under has been changed. He has changed it. In a wide range of contexts, Trump has asserted an executive authority unmatched by any peacetime president in American history. As the Supreme Court opens its 2025 term, the single most important decision it must make is whether it will permit this amendment by executive action or whether it will resist it.
The Court has faced this choice before. In 1933, after a stunning victory over the incumbent Herbert Hoover, FDR launched the nation on a series of legislative initiatives that were plainly unconstitutional under the Court’s then-prevailing interpretation of federal power. Two years and two months after his inauguration, the Supreme Court shut it down. In a series of decisions at the end of May 1935, the Supreme Court effectively told the President that he did not have the power to amend the constitution by legislative fiat. That any such amendment would require a proposal by two-thirds of Congress and ratification by three-fourths of the states.
The President did not accept the Court’s rebuke. In an extraordinary hour-long press conference four days later, FDR gave reporters a careful and detailed rebuttal to the Supreme Court’s reasoning. The Court would return the nation…
