Constitutional Crisis?
When does Executive overreach become something more?
Yesterday’s episode of the NYT The Daily podcast, “A Constitutional Crisis,” debates whether President Trump’s flurry of executive orders crosses that threshold. Veteran legal correspondent Adam Liptak answers in the affirmative.
I’ve been talking to a lot of law professors. And what emerges from those conversations is that there’s no fixed, agreed upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power.
It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it’s more typically cumulative. But it’s not a binary thing.
It’s not a switch. It’s a slope that can descend. And it takes on a quality of danger if there’s a lot of it.
[…]
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that.
The president will often use his power to its fullest extent to assert a constitutional authority, to do things that other branches may oppose. But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power, that asserts that he’s basically the decision-maker, that he can act alone, he can disregard instructions from Congress.
And Congress is in Article 1. Congress makes the law. That sounds significant. The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump’s actions over the past several weeks has been quite different, has been to insist on his primacy.
The episode is worth listening to or reading in full.
Granting the fluidity of the definition, I would disagree with Liptak and say “Not yet.”
To be clear, Trump’s view of executive power is clearly well beyond that envisioned by the Framers. But that’s been true of most Presidents, including those most everyone agrees were “great.” George Washington, Thomas Jefferson, Abraham Lincoln, Teddy Roosevelt, and Franklin Roosevelt clearly expanded the powers of the office to enact their policy preferences.
Beyond that, I think some of Trump’s executive orders are plainly unconstitutional or at least illegal. The order revoking birthright citizenship is firmly in the first camp while pretty much everything DOGE is doing is in the latter. If Presidents can ignore the Constitution and the law, then they are meaningless.
So, why “Not yet”?
Because, at this point, he is mostly* deferring to judicial orders. When his actions are enjoined, he has, thus far, acceded to judicial authority.
Thus far, Congress has been flaccid in asserting its rights. That’s a failure of our political system but a Congress demurring to a same-party President has become the norm, Joe Manchin notwithstanding. But, unless Congress stands up to Trump and he refuses to acknowledge their power, he has free rein. That’s depressing but not a crisis.
*The only possible exception of which I’m aware is that he seems to be only selectively releasing funds that he had ordered frozen despite a judicial ruling that he lacked authority to freeze them.
Anyone in Congress on the GOP side who opposes Trump risks losing their next election. Only those leaving office will be willing to take the risk.
Steve
I would say we have a constitutional crisis because the majority of congresspeople have openly declared they will not do their constitutional duty as a co-equal branch of government. Waiting until Trump goes a mile over the line strikes me as not necessary for us to realize we are in the danger zone. We’ve invaded countries for doing less than this.
Another problem is Musk’s presence in the government without constitutional standing. This might be the first time in history that a strong man has taken over with the support of the head of government. As long as we don’t know the real state of affairs between Trump and Musk, we’re not a responsible citizenry and can’t do our duties to keep an eye on our government.
“Selectively releasing” funds that he has been *ordered* to unfreeze IS defying a judicial order. This is a pretty black/white situation. He lacked the authority to freeze the funds, he was ordered not to do so, and he’s decided to do what he wants.
I think it’s natural that people are trying to talk themselves into this not being a Constitutional crisis. Once that is acknowledged, we’re in new territory. But we’re already there, and “well…but-ing” to make ourselves feel better is simply delaying the inevitable.
Therein lies the crisis. Congress willfully ceding their powers to an authoritarian is a damn crisis!!!
The only check is the judiciary.
And the Senate and House if push comes to shove.
Can a President shut down spending authorized by Congressional assent? I was raised on “a President proposes and Congress disposes.” Is this statement now invalid? Does a President have the right to basically eliminate an agency that Congress has authorized and funded, and fire all the professional civil servants willy-nilly? Thanos snap CFPB away? What is the law on that?
Do Republicans not realize they are likely to lose the Presidency next time around? Congressional majorities?
Over-reach has consequences.
To enforce a court’s orders, the Judicial Branch have to go to the Executive Branch.
Court Role and Structure
The Executive Branch uses the U.S. Marshal Service to enforce judicial orders. Which is under the Dept of Justice. Run by Trump acolyte Pam Bondi. Anyone see a problem here?
The five-year-old (or something) kid of the billionaire who bought the presidency for $200m or thereabouts was telling the POTUS to shut up on live television in the fucking Oval Office.
Enough said, I think.
@de stijl:
I hope over-reach has consequences. Otherwise, we’re fucked.
One side is trying to bake in an obsequious subservience in civil service amongst agencies Musk targets.
Politicized civil servants is a really bad idea. You want seasoned professionals. I cannot underline that enough. Having a professional civil service with career employees is hallmark of a functioning democracy.
Given the deeds of Trump, and the words of JD Vance and others, there is too much of an appetite over in Wingnuttia for a standoff between the executive and judicial branches. Yes, Washington, Jefferson, Lincoln and the Roosevelts expanded presidential power, but under extraordinary circumstances….birthing a new nation, civil war, depression, etc. Those presidents didn’t delegate their responsibility to an ignorant, greedy campaign donor so he could feather his own nest. And Congress didn’t simply roll over for those “great” presidents. The Founders deliberately created a malleable government that could be tweaked. Never did they intend to have a President making changes with a sledgehammer while Congress and the Courts sat by saying, “Oh well, nothing we can do.”
@de stijl:
If the electorate has a shred of decency and common sense, then perhaps the next president will be a Democrat. But Republicans are probably not concerned about that because they hold asymmetric power. They collectively accept norm breaking, rule breaking, and law breaking in service to their team’s accumulation of power, whereas Democrats, as a whole, do not.
@drj:
Missed these factoids (names of Musk’s youngest children):
The 5 year old who Musk used as a prop in the Oval Office is “X Æ A-Xii, or X”
Draw your own conclusions.
https://www.eonline.com/news/1413391/elon-musks-ex-grimes-speaks-out-after-he-brings-their-son-4-to-white-house-press-conference
@Rob1:
I hope all those kids promptly change their names to Mary, John, William, Anne, or something else normal once they’re of age to do so.
I understand that Musk has offered his sperm to any woman who wants to bear his children.
Glenn Kirschner: Flood the zone with good using executive orders against unrestricted weapons of war and hate speech because Justice Matters
He has changed his tune and done a 180.
@Jen: You’ve nailed the issue. By the time people can recognize a Constitutional crisis, it’s too late. And if Congress and the courts are unable to secure executive cooperation on reining those powers back, there’s no Constitutional government.
Laws only succeed to the extent that people, in aggregate, follow them. This is especially true at the administrative level. So, yeah, we got us a Constitutional crisis. Now what?
@de stijl:
@Eusebio:
It depends on how far into absolute dictatorship the chief nazi and his queen felon go. We may see candidates disqualified by quiescent courts on flimsy pretexts, outright arrests, legislatures overturning results (and ratified by the courts), assassinations, kidnappings, beatings, brownshirts turning people from the polls, all in the name of law and order or protecting democracy or fighting the enemies of the people. All this will be aided by turning the media rather subservient or eliminating unfriendly outlets by whatever means are possible or necessary.
@Eusebio:
I appreciate the hope, but it’s not that.
It’s more like “Where’s my pony? Where’s my pony who poops my crypto coins? My promised pony was supposed to give me blow *pops* on the regular. Fuck you. I’m voting for the other.”
The electorate are fickle. Swap out sugar daddies often.
@Paul L.:
That happens a lot with partisans. See, for example, Stephen Miller suddenly attacking judges for blocking executive decisions after financing a number of lawsuits that engaged in Judge shopping to… check notes… block Biden’s executive orders.
And your point is? BTW, a former federal prosecutors definitely has the same institutional power as a current advisor to the President… right? I am sure you are grasping your pearls about Miller and would never support an administration that hires such hypocrites.
Or is it that everyone is a hypocrite; therefore, we shouldn’t care about anything other than what side we support?
@Kathy:
That’s dark.
But, push comes to shove, I’ll riot against it.
@Eusebio:
Ya just gotta win the margin.
And the “ins” are on the defensive. “Tariffs are good for us. This temporary inflation is transitory! Trust the process. We’re not going to hell in a hand basket. Who are you going to trust? Me, or your lying eyes?”
@Paul L.: Different goal than Trump’s appears to be for the moment, but a good object lesson on the risks of situational ethics/philosophy.
You can’t decide overreach, in this case, is appropriate because “I’m using it for good,” you have to weigh it against what happens if anyone, or everyone can/must overreach. The seeds of the constitutional crisis were planted long ago. (Maybe even as far back as the founding.)
ETA: Maybe Derrida is right and all discourse DOES FAIL under the weight of its internal inconsistencies.
This was originally said in circumstances that made it silly, but it seems apt here and now.
Eventually this comes down to SCOTUS, and Trump’s willingness to defer to SCOTUS. And we already know SCOTUS is corrupt. Seems to me that if in doubt about a constitutional crisis, it’s best to assume the worst. It’s only been three weeks. See any sign it’s going to get better?
@Matt Bernius: I suspect option 2, or that he’s just perennially offers counter arguments to whatever is being posted. Not uncommon on the Internet.
@de stijl:
Established dictatorships like Nicaragua or Venezuela, know to use “legal” means and courts for this, sometimes resorting to arrests, and mostly in the bigger races. But they also have centralized election agencies (Mexico does as well), and can hide or fudge the counts as they please.
US elections are local, not central, and this applies even to the presidential election. Therefore more radical means might prove necessary.
I know it’s dark, but it’s also common throughout history. Absent a coup, revolution, or civil war, you can’t just establish one party rule easily.
@Matt Bernius:
I will enjoy more National Wide injunctions from district courts throwing sand in the gears of democracy.
Well, not so long ago, the Supremes gave their imprimatur to a definition of “official acts” that is so broad (and so capable of abuse) that perhaps the boundaries of a “constitutional crisis” are so constricted that it’s mostly a meaningless concept.
@Paul L.:
Ok, so you support Glen Kirschner’s current position and Stephen Miller’s former position.
Great to know.
Or wait, is that sarcasm? It’s so hard to tell with you.
@just nutha:
Yup, and it’s also example # 100xd6 of what I find so boring about knee-jerk heterodox thinking (and nihilistic bothsiderim). Not to mention a tendency to obsess over what media figures say and then be strangely quiet about people in positions of political power (especially if they are on “your side”).
Sadly, those types of posts are apparently my catnip… which really is MY problem, not Paul’s.
You know, one of my favorite bits from Lord of the Rings (more the book than the film) is when the Ents spend the better part of the day debating whether the hobbits are orcs or not.
Their world is on fire, but they want to finely parse out definitions first. I have come to view this as Tolkien poking fun at his own tribe – the academics. Right down to the whole business about the Entwives. “We have lost them, and we cannot find them!”
What’s going on is bad, maybe terrible. It is unlawful. It is unconstitutional. It is cowardly. It is unamerican.
I feel like there’s absolutely nothing I can do to stop any of it. Debating about whether it fits the definition of “constitutional crisis” perhaps has academic interest, but it just makes me feel more powerless.
AND, I know that’s the intended effect. By making me feel powerless, I take myself out of the game. This is a long-standing strategy. So I’m gonna keep doing what I can do, which is not much, and looking for ideas for more. I’m gonna try to take care of the people I love, and wait for an opportunity to do more.
@Kathy:
You are telling me things I know. And I’m not saying that in a dismissive or patronizing way, but how dare you cut that close to the bone? Your truth hurts.
I’m trying my best to deny and dismiss, but I know the hard truth underneath. We’re fucked. He’s a really bad guy to be President and he’s appointed actively horrible people to run / ruin institutions that are the backbone of the government.
I’m appalled. Shocked. Bereft. My way of coping is that stable institutions will see us through, and now that lifeline has been eliminated.
I know the world, the status quo before Trump, was not the best of all possible worlds, but it was on the upswing in a lot of ways.
Lately, I’ve just been living in a Candide / Panglossian satire as a defense mechanism.
Then the world comes crashing in. How did the world get this shitty this fast? I thought we were better than this, but we’re not. We never were.
I still want to help to make it better.
@de stijl:
I’d rather be discussing the similarities and contrasts between Hazbin Hotel, The Good place, and Niven and Pournelle’s Inferno, but here we are.
As to how we got here, I’m reminded of the last days of the USSR and Communist Central Europe in the 80s and 90s. Briefly, people have been told they live in the best economic system, and yet their lives keep getting harder and economic pressures keep becoming greater.
The Communists blamed it all on the West, but there were no Westerns in the USSR or Poland or Albania. The oligarchs blame it on immigrants, transwomen, and Democrats, and there are plenty of those there to point to and oppress and attack.
And social media just makes things worse.
@Kathy:
The White House already showed this tendency by excluding AP this week over that agency’s continued use of “Gulf of Mexico.” Expect more coercion.
This blog post left me scratching my head.
The whole thing could have just been this:
“To be clear, Trump’s view of executive power is clearly well beyond that envisioned by the Framers. But that’s been true of most Presidents, including those most everyone agrees were “great.” George Washington, Thomas Jefferson, Abraham Lincoln, Teddy Roosevelt, and Franklin Roosevelt clearly expanded the powers of the office to enact their policy preferences.” You could have also mentioned – or more recently, without the “great” – Obama and Biden.
Or adding this:
“Thus far, Congress has been flaccid in asserting its rights.”
This has been going on for probably 30, but most certainly 20 years. By definition then, its not a partisan issue. Its a failure of Congress, and then of a flaccid electorate not willing to vote to end it.
But then we have this gratuitous to the point of embarrassing observation:
“So, why “Not yet”?
Because, at this point, he is mostly* deferring to judicial orders. When his actions are enjoined, he has, thus far, acceded to judicial authority.”
The fact is that he has said he will abide by the courts, but will appeal and fight. No different than any other president. What is your point?
You know, I might as well say that I don’t think we have a legal crisis – yet – (but we might! we might!!) because James Joyner has not walked onto the street yet and shot three people to death. I’m going to go way out on a limb. I’m not thinking I’m going to read a headline about your marksmanship.
This hysterical, borderline psychotic, commentary and Pavlovian opposition to anything Trump is just plain weird. It plays well with commenters here. Who join in almost like clapping seals. But it does not play well broadly. Is there really any wonder the election went the way it did?
@de stijl: And based on what you tell us about what’s going on with you, you are making it better. But you can only do what you can do. You and I can’t fix what’s wrong with America.
@just nutha:
Don’t do this to me, please. I have not a shred of self control, and I have other things I need to do.
@Kurtz: My apologies. I’m retired now and have nothing better to do. And, I used to make a living out of encouraging students to discuss and write about questions like that one.
Corrupting young minds. It was an amazing high!
@de stijl:
We’ve been building up to this point for quite awhile. And I’m not just talking about the obvious decline in our political comportment (but that too.)
Our over arching society and popular culture, encompassing personal values, choices, conduct of relationships etc., have gone through radical change during the past 70 years. Orientation towards one’s own place in society, and sense of personal responsibility towards community, as well as, primary personal motivational goals have shifted, as each generation has left its impression on the culture we share.
Consider the succession of generations: Greatest, Silent, Boomers, GenX, Millennial, GenZ; and in particular consider each of those generations’ successive differences in themes, memes, personal aspirations, career goals.
They’re not the same, having been subjected to different largescale events (WWII, assassinations, Vietnam etc.), continuously increasing materialism, explosive technological change, ever increasing psychological manipulation by marketing forces, greater compaction of human density etc., etc. All these factors and more, are part of a dynamic feedback cycle of continous change, each factor acting upon and being acted upon by all other factors within our cultural “soup.”
Focus for a moment on the singular element of “heightened materialism” (now raging consumerism). It stands out in stark relief when viewed across all those generations. This heightened materialism appears to correlate with our personal sense of identity. We act out of that sense of identity. As a nation, as a society, our shared identity is shattered, fragmented, more than it ever was.
If obligation to self gratification (as pounded into our brains by our popular culture) now overrides our sense of obligation to community, country, and Constitution, it becomes obvious how easy it would be to set people against each other. Traditional social bonding has been scrambled. Those social bonds reinforced all the values now being stripped away.
As supporting evidence, look at the metamorphosis of popular Christianity in America. Within that milieu, all our culture’s increasingly worst tendencies, as described, are on display for longitudinal study. And that’s just one defined culture grouping.
America’s primary religion, our central credo, is now “stuff.” Our competitors have been observing and learning our “hacks.”
@Connor:
The “Pavlovian” defense that you and yours offer for Trump’s flagrant violations of law, morality, and human dignity, is what is pathological — no “borderline” qualifier about it. And it “plays well” with the low information MAGA crowd and the fascist-curious, who join in like yowling hyenas ready to tear apart the very thing that ill-conceivedly gave them the freedom to do just that. Something that will need to be addressed in the future.
@Connor:
I asked ChatGPT about the relative rationality of the OP and your response:
That’s just the summary.
What ChatGPT doesn’t know, and apparently you do not either, is that Joyner has consistently criticized Congress for abdictating its role in the balance of power between branches.
The upshot: his criticism has nothing to do with Trump. ETA: it does in one sense–Joyner clearly has antioathy for Trump–but he would criticize any President for overreach. Meaning, your belief that it is some sort of emotional response to hatred is way off the mark.
As a bonus, I asked ChatGPT if the OP reflects the author being borderline psychotic:
I asked: Does the respondent seems to be driven by bias and emotion?
In the interest of fairness, because it picked on your use of the word “flaccid”, I pointed out that the OP used it as well. And it responded by pointing out that the OP situates that word within a rational context, whereas:
I even asked it to reassess based on a potential charge of bias on its part.
Aside: oh boy, I am going to have a fun time feeding my comments into this bastard.
James say “Not yet” on a constitutional crisis. I would say “Long past.” The constitutional crisis occurred on Feb 13th, 2o21, with the acquittal of Trump for his second impeachment and we are now facing the implications in 2025. Connor’s hand-waving above proves my point.
When they acquitted Trump of incitement of insurrection, almost all of the Republicans in the Senate signaled to a hyper-partisan tribal electorate that following the law was political choice. They put a marker down that stated if someone who breaks the law is on your team, it is good constitutional order to absolve them of criminality not based on adjudication of the evidence (no Republicans are claiming that Trump didn’t do what we all saw on TV that day), but rather on these coined terms of lawfare and weaponization (most Republicans will say that what we all saw that day wasn’t a big deal or at least not criminal). He did something against the law, but it wasn’t illegal because… blah, blah, blah.
Fast forward 4 years – one tribe is accustomed to the idea that lawfulness is in the eye of the beholder, so they see their votes as a vindication of a victim of partisanship. The muddy middle is numb enough to see no problem with giving their votes to a convicted felon if it might lower the price of eggs. The party that defended the rule of law is dismissed as shrill.
The goalposts have moved.
As Trump has come into office, both VP Vance and AG Bondi were allowed to state publicly that, no really, there was a peaceful transfer of power in 2021, because in the end Trump left office on January 20th without being dragged out. Constitutionality be damned, since the end result was the same. This is my problem with saying a constitutional crisis is deferred until Trump actually defies a judicial order. Sorry, no sale.
@Kurtz:
Excellent
@Rob1:
I could not bring myself to respond on my own. I felt that I already spent more time than he is worth when I responded to his post the other day.
I figured it may be fun to see how an LLM would handle it? I have barely used it before, and not for something like this.
I must say, I left out a lot of ChatGPT’s answers to my prompt and some of my follow-ups.
For fun, at the end, I asked:
I would not necessarily describe @Connor as ignorant. That is to say, it is not the first descriptor that comes to mind. The LLM said that his post implied that he is, “invested in a political stance.”
I think that is true. But it raises a host of other questions, the answers to which could implicate us. But that is a much different topic.
@Rob1:
I decided to compromise and stop using “Gulf of Mexico” in English comments and posts where appropriate.
It’s now “Gulf of Dumbfuckistan.”
On a more serious note, there is some resentment in a great many countries in the Western hemisphere that the US has coopted the name of the continent for their nation. IMO, even back in 1776 it was presumptuous. Did they think Spain, France, the UL and assorted other Europeans would forever own the rest of the continent?
If a Dane or Swede is European, and a Japanese or Vietnamese is Asian, then a Mexican, Venezuelan, Cuba, Brazilian, Guatemalan, Canadian, etc., is American.
@Kathy:
I’m aware of this and I understand the annoyance, but there just isn’t a workable alternative in English as far as I know.
UnitedStatesian?
Unitedite?
Statesite?
I’m open to suggestions.
@Kurtz: I’m just a real person. Who raises cattle and chickens in Wyoming. I think Paul is real. I’m not sure about Conner or Fortune. But they’ve apparently skewed things to where people we like are leaving. I’ve been here since 2008’ish, and this shit is weird.
@Kari Q: 😉 😉 Fer real.
@Jax:
Leaving OTB?
@Kurtz: Yes, leaving OTB. Michael Reynolds and MarkedMan have both stated in recent days that they are leaving.
@Jax:
More importantly to “we like” is these are people we respect.
The people we respect are those that present intellectually honest argument (or counter arguments).
To my way of thinking, it doesn’t matter if I agree or not, the real value is honesty and good faith.
Which is more pathetic?
1. Joyner admitting he still pays attention to the NYT after it lied to him about WMD in Iraq, Russian collusion, and Biden’s mental state as President.
2. Joyner pretending he cares about the Constitution when he just spent the past four years blissfully ignorant of who was actually running the country when Biden was having one of his “bad days/weeks/months/years.”
I was unfair to Glenn Kirschner. He still would abuse executive orders to Flood the zone with good against unrestricted weapons of war and hate speech because Justice Matters.
Executive orders against Government officials such as the law enforcement caste is bad.
@HereWeGoAgain:
The NY Times is a paragon of journalism
I just like award winning Investigative reporter Duff Wilson enjoy using the thousands pages of evidence line to bolster any case falling apart for the prosecution/law enforcement caste.
It’s the whole framing. What does “Constitutional crisis” even mean? It’s a performative phrase and it means whatever the speaker wants. It’s the old Dan Rather routine. When a Democrat doesn’t get what he wants, it’s a crisis.