Identifying Reforms Within Reach Part I: The Executive Branch

Part I of a three-part series on reforms to improve our federal government

Amending the Constitution is insanely difficult

One of the both the greatest strengths and the greatest weaknesses of our Constitution is the difficulty of altering it. A bill must be introduced that passes 2/3 each of the House and the Senate, and once that is done is must be ratified by 3/4 of the states before it can be recorded in the Federal Register.

And if that weren’t enough, the recent accumulation of the 38th vote to pass the Equal Rights Amendment has generated a slew of battles. Some of those are legitimate questions about the expiration date that was set for ERA’s ratification. But that raises questions of its own - most amendments didn’t have such time limits.

The Equal Rights Amendment seemed on its face straightforward:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3: This amendment shall take effect two years after the date of ratification.

Yet here we are, over 50 years later, still struggling to push through something that should not, half a century after it was written in 1972, be controversial any longer. In fact, the Court’s Bostock decision granted nearly the same protections by judicial fiat.

Amending the Constitution in this environment is difficult if not impossible

As many other good policies, laws, and decisions from the Civil Rights era are progressively being repealed by the regressive and corrupt Roberts court, it leaves us in a difficult spot.

This, however, does not mean we are without hope or means for action. But let us consider where the low-hanging fruit is. We will examine the executive branch today. Keep an eye our for legislative and judicial reforms in the next section.

The two sources of damage to the integrity of the Executive Branch: The Chief Justice of the Supreme Court and The Republican Party

In an excellent article for Mother Jones magazine, Pema Levy and Ari Berman chronicle the rise of the unitary executive, the erosion of civil rights law, and flat-out corrupt, partisan decisions attributed to and pushed forward by the Roberts court.¹

Similarly, when our Founders designed the system of checks and balances, it was meat to use individual ego and self-interest on the part of individuals in one branch of government to prevent encroachment by a co-equal branch.

What the Founders did not anticipate was the rise of modern political parties - nor that the predilection for monarchical or at least single-party rule would be sufficient as to overcome most of the roadblocks to tyranny that they had put in place. The Founders were too close in time to autocratic rule, having fought a Revolutionary War just to come out from under it, to have endorsed anything like today’s GOP.

It is impossible for any sane and rational person to imagine that given the excesses of absolute monarchy under George III that any Founder - Federalist or not - would have thought it possible for any Supreme Court to grant any form of immunity - much less absolute immunity - to a president. Nor could they have conceived of a political party working hand-in-glove with the judicial branch to remove guardrails from the executive, and essentially strip the judiciary of power in doing so.

But what can be done? What about the Electoral College?

The Electoral College increasingly it falls out of alignment with the people. Even putting aside the election of 1824, there have been four instances (Tilden in 1876, Cleveland in 1888, Gore in 2000, and Clinton in 2016) where the popular vote winner lost the Electoral College. All of them have been candidates for the Democratic Party.² Even discounting the political re-alignments of the early 20th Century, this is a stunning record.

While the electoral college originally started to keep someone very much like Donald Trump from ascending to the presidency. In Federalist No. 68, Hamilton discusses the importance of good moral character (to prevent “one of low character”) or “a demagogue” or a person engaged with “foreign intrigue” from ascending to the presidency.³ Thus, the people elect electors and then the electors choose the president.

But as the US has headed toward populism, in succeeding years most states have tied the electors to the popular vote tally for the state, and those electors are generally chosen from a pool of partisans for the parties they represent. While most states have so-called “faithless elector” laws⁴ that could potentially punish an elector for voting against the nominee, this has happened rarely enough that for all the fanfare it generates it is probably worth little attention, other than to understand the faithless elector laws as a half-hearted push toward a nationwide popular vote.

But the Electoral College itself is a Constitutional structure. As such, to remove or change it would require a Constitutional amendment.

So what can be done about the Electoral College? The National Popular Vote Interstate Compact⁵

Directly speaking, not much can be done about the Electoral College at the national level. Too many in power are benefiting from the situation it creates, fair or not.

However, after 2000, and again after 2016, there has been renewed interest in finding an alternative mechanism to allow for popular vote election of the President.

The closest we are to a national solution at the present time is the National Popular Vote Interstate Compact. The mechanism is simple. All the member states agree that when enough member states join to constitute 270 electoral votes (the number needed to win) all of those states will give their votes to the winner of the national popular vote.

How can this work? The Constitution is explicit that the states may devise their own processes for choosing electors. In this instance, he member states work together to align their interests with the popular vote.

This used to seem a far-off dream. But Wikipedia maintains a tally page, and as of today there are enough states in the Compact that 209 EV’s are already committed, and an additional 58 are pending - bringing the total to 267. Even one more uncommitted state could tip the balance. Swing states like Wisconsin, Michigan, and Nevada are potential contenders as well as deeply Red states like Texas, the Dakotas, and Florida, and as every state has a MINIMUM of 3 EV’s (one for each senator plus one for the single rep of a not very populous state) the finish line is in sight.

Will the National Popular Vote Interstate Compact survive a Constitutional challenge?

This is an open question, and given the current political landscape it’s most likely that the challenge would come from Republicans, and end up before the corrupt Roberts court. If one is to proceed from a pure textualist perspective - a plain reading of the law - it is likely the Compact would prevail. After all, the Constitution gives complete autonomy to the states in choosing their electors:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

However, given the history of the Electoral College, for once there is a legitimate originalist (considering the law at the time it was enacted) argument for striking the law down. The fact that the Founders were reticent to allow a popular vote for president as well as the fact that much of our current system struggles with balances between state and federal powers, and power distribution between the states are both reasonable hooks on which to hang a legal argument.

Conclusion: What can I do?

Probably the most fruitful action to circumvent the Electoral College is to work with your state to help get the National Popular Vote Interstate Compact passed in your state.

In a country where billionaires and would-be autocrats are trying to usurp power from the people at the same time as our politics lean increasingly toward populism, supporting the Compact makes sense. It wouldn’t have prevented Trump’s ascent in 2024, but it would have forestalled it in 2016 - and the course of our nation under Hillary Clinton would have been markedly different.

1. Levy, P and Berman, A. 2026. Blame the Roberts Court for Everything. Mother Jones. January/February 2026.

2. https://en.wikipedia.org/wiki/List_of_United_States_presidential_elections_in_which_the_winner_lost_the_popular_vote. Accessed 1 Feb 2026.

3. Hamilton, A. Federalist No. 68. The Federalist Papers.

4. https://en.wikipedia.org/wiki/Faithless_elector. Accessed 1 Feb 2026.

5. https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact. Accessed 1 Feb 2026.