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.
