Now Is It a Constitutional Crisis?
We are at least on the precipice.
A few weeks back, NYT legal correspondent Adam Liptak argued that many law professors considered President Trump’s flurry of executive orders asserting extraordinary powers to flout seemingly clear federal statutes a “Constitutional crisis.” While concerned, I argued that a flaccid Congress abrogating its Constitutional responsibilities was a failure of our system but not a crisis. So long as Trump and other executive officials heeded judicial rulings to scale back, we were not in a crisis.
Well, in the last few days, that has seemingly changed. There are instances where it certainly seems that judicial orders are being skirted, if not outright flouted. And the Senate’s top Democrat is now publicly using the C word.
NBC News (“Chuck Schumer says a ‘lawless’ Trump has caused a constitutional crisis“):
In an interview with NBC News’ “Meet the Press,” Schumer assailed Trump’s recent calls to impeach a judge who ruled against him in a case involving his efforts to deport Venezuelan immigrants. Judges and plaintiffs in some cases have accused Trump of violating or sidestepping court orders as he faces a litany of legal challenges to his executive actions.
When asked if he agrees with scholars who say the U.S. is in a constitutional crisis, Schumer responded, “Yes, I do.”
“And democracy is at risk. Look, Donald Trump is a lawless, angry man. He thinks he should be king. He thinks he should do whatever he wants, regardless of the law, and he thinks judges should just listen to him,” Schumer told moderator Kristen Welker. The full interview will air on “Meet the Press” on Sunday.
“Now we have to fight that back in every single way. And we actually have had over 100 cases in the courts where we’ve had a very good record of success. So Donald Trump, infuriated by that success, said judges should be impeached,” Schumer added. “Democrats in the Senate will not impeach judges. Full stop.”
I would characterize public statements that judges issuing rulings he dislikes “should be impeached” as improper bluster, as they have no force of law. For me, the potential “crisis” is the repeated suggestion from senior administration officials—up to and including Vice President Vance—that judicial orders don’t necessarily have to be obeyed. And, certainly, the willful flouting of judicial orders crosses that line.
ABC News (“Is the Trump administration’s conflict with judges a constitutional crisis? What to know“):
Over the weekend, the administration defied a federal judge’s directive issued from the bench to turn around two flights carrying alleged Venezuelan gang members to El Salvador, after which the president and his top officials said that they would push ahead with the deportations despite what the court said — while also pursuing an appeal.
Administration lawyers took a similar position when judges ordered funding cuts from agencies such as USAID to be restored or for spending to be unfrozen, according to court documents.
Sudler Family Professor of Constitutional Law at NYU Law School Richard Pildes, who has been involved in many federal court cases, told ABC News that such defiance of the courts undermines the judicial branch and could have serious consequences.
“I would say, we are dangerously close to a constitutional crisis. Maybe we’re dancing kind of on the edge of a constitutional crisis,” he told ABC News.
James Sample, a constitutional law expert at Hofstra University who has been involved in federal cases, agreed that the country is on the “precipice” of such a crisis, noting that the courts are limited in being able to enforce their rulings.
However, he noted, courts are designed to be deliberative with cases.
“The courts are essentially saying, we need to slow down,” Sample told ABC News. “The executive [branch] may ultimately get what it wants. … But if the executive gets what it wants without a process, then not only the individuals lose, but all of us lose justice.”
Sample said constitutional scholars have differed on what exactly defines a constitutional crisis.
“The one thing we can say for certain is that it’s not an on-off switch,” Sample said of constitutional crisis. “It’s not a binary. It’s a position on a spectrum.”
[…]
The situation has been played out over the last couple of weeks as Trump has claimed that he would abide by court orders that issued temporary restraining orders over his policies, such as deportations, mass firings of federal workers and discharging transgender service members; however, court documents have indicated that those orders were not followed in many cases.
Trump and his allies, including billionaire Elon Musk, have also gone after Judge James Boasberg on social media after he issued from the bench a temporary restraining order against the administration in a case challenging the president’s executive orders to deport Venezuelan migrants.
“We have not historically seen the idea of attacking judges [or] attacking courts for rulings with which we disagree and attacking the system itself,” Sample said. “That’s a problem.”
The administration has, at best, slow-rolled compliance with judicial orders. Notably, despite several judges ordering it, USAID remains effectively shuttered.
The most egregious case to date is the clash with Boasberg. He ordered an immediate halt to specific deportations and went so far as to verbally order that planes already en route to Venezuela be turned around. Not only was that not done, but it appears that at least one additional plane flew after he issued a written order.
This is, to say the least, problematic.
What’s not clear to me at this point is the degree to which turning the planes around was even a feasible option. That is, it seems unlikely to me that the attorneys in question had a direct line to the pilots or that the pilots would have taken orders from them. I simply don’t know how the process of relaying orders up the DOJ chain and to the other executive agencies involved works and what would be a reasonable timeline for compliance.
Regardless, there is clearly a strategy of creating fait accompli situations by flooding the zone with aggressive actions that are hard to undo at a pace that the courts, who are by nature slow and deliberative, can simply not keep up with.
Further, given the aforementioned flaccidity of Congress at the moment, it’s rather clear that the administration feels broadly empowered to continue pushing the envelope. It is not fathomable at this point what the President or senior administration officials could do to be impeached. And Senate Democrats, including Schumer himself, went along with a continuing resolution that funds the government through the end of September.
Still, the courts are not powerless. While the President and his inner circle are immune in the short term, others are not.
Despite unprecedented pushback on the courts, the experts said that the judiciary does have tools to prevent a crisis.
Pildes noted that while courts face a challenge when it comes to enforcing their rulings against the executive branch directly, they can still take some actions to get an administration to comply.
Judges have threatened to use contempt findings and fines, and Pildes said those warnings can be serious.
“If there are lawyers involved in advising to defy a court order, or participating in defiance of a court order, there can be sanctions against those lawyers. Their bar licenses could be at stake,” he said.
“Then, if there are misrepresentations that lawyers make in court, that can also be sanctioned against the lawyers,” Pildes added. “Sometimes that very sanction is enough to get them to comply. But if it’s not, the courts can start imposing fines.”
“As the executive defiance kind of goes on, more and more officials would have to be involved in going down this path with the executive of not complying,” he said.
These punishments would, I believe, be immune from the presidential pardon power.
Alas . . .
Sample, however, noted that if a court chose contempt, it could further test the waters of the Constitution as the U.S. Marshals Service, which is under the jurisdiction of the executive branch, would be involved with enforcing an order.
“It’s not far-fetched to believe that the Trump administration would, in the face of a contempt order, just simply tell the U.S. Marshals Service not to enforce it,” he said. “This goes back to that same principle that the glue that holds the constitutional structure together is not just law, it’s norms.”
Which we have considerable evidence are not of high concern to this administration.
So, it may come down to the “We the People” referenced in the Preamble.
Sample and Pildes said that given their actions so far during the last couple of weeks, it is unlikely that the Republican-controlled Congress will step up to curb Trump’s rhetoric and action and force him to comply with the courts..However, public opinion will play a big part in preventing the country from entering a crisis, they argued.
“The tool, the arrow in the quiver of the courts is the legitimacy and the public’s faith in the legitimacy of the process playing itself out of those rulings. One of the things that is a hallmark of a civilized society is that if the citizens believe that a process was fair,” Sample said.
Pildes noted that as the Watergate scandal unfolded and then-President Richard Nixon was forced by the U.S. Supreme Court to release audio tapes that implicated him on impeachable offenses, public opinion had already turned on him and his allies in Congress to the point that he resigned.
Pildes added that public opinion can be expressed through economics, which federal leaders watch attentively. Business and stock markets are typically weakened if governments and the rule of law are disrupted and that could force the executive to rethink their resistance to the courts, he said.
“If we get to [a constitutional crisis], you can imagine easily a lot of turmoil that would actually show up in the market show up in the economy. People will stop wanting to invest here,” he said.
Sample said the country’s current polarization will make it harder for a public consensus, but he believed that generally, Americans would be speaking out against anything that leads to a crisis.
“Even if you are hardcore MAGA, and you think Donald Trump is a benevolent authoritarian, there may come a time where the next leader, with authoritarian leanings is, from your perspective, not so benevolent,” he said. “So, if Americans want to push back against authoritarianism, they need to stand up and be willing to say I oppose authoritarianism, even if it might be producing the short-term results that I desire.”
I do not have much confidence in this solution.
It was already a constitutional crisis when DOGE started dismantling USAID and firing employees across the executive branch. It was definitely, without a doubt, a constitutional crisis when the DOJ thumbed its nose at a judge ordering the deportations without due process to stop. We have to stop hesitating to call things what they are, until every authoritarian “i” is dotted.
One manner of slowing down Trump’s coup is to remove soldiers from his army of lawyers, and that can be accomplished with sanctions and referrals to the attorney governing entities for DoJ lawyers who go into court and, contrary to Rule 11, make bad faith arguments and mislead the court…which is precisely what the Justice Department lawyers did in the deportation case with Judge Boasberg. It won’t matter if the Marshals won’t enforce contempt findings if the attorney governing bodies follow through with sanctions against the offending lawyers. Pam Bondi and Emil Bove wouldn’t have to worry about employees who don’t want to follow their (unethical) commands, they’d have to worry about the ranks of AUSAs being depleted by suspensions and disbarment.
@Kingdaddy: It was egregious, for sure, but Presidents have long pushed the envelope on executive power to see what they could get away with. I don’t think it was a Constitutional crisis, for example, when Nixon started refusing to spend money allocated by Congress. It would have been one had he kept doing so when the Supreme Court told him it was unconstitutional.
What worries me is the sheer recklessness with which things are being done, combined with a compliant Congress that seems unwilling to stand up for its prerogatives. That this is being abetted but not-so-subtle threats and intimidation is deeply unsettling.
@Kingdaddy: I would argue that it was a constitutional crisis when Congress passed the 1973 War Powers Act, essentially delegating the declaration of war to the president.
We have never had strict adherence to the Constitution. This doesn’t in any way justify Trump’s desire to ignore the courts, an act that the courts brought on themselves by allowing themselves to be ignored by him when he was a private citizen.
At this point, we’re narrowing down the list of countries to bail out to. It will be sad to leave our friends, but it will be more sad to die without healthcare coverage because, as retirees, we have been deemed “useless eaters” and our financial resources stolen and given to the billionaires currently looting the treasury.
Yes, it is a constitutional crisis.
Pay attention to what Trump’s underlings are saying, particularly his press secretary and Stephen Miller. Both have flat-out stated that lower courts have no authority over what the President decides he wants to do.
Now, thinking people and anyone who paid attention in basic civics know this is not the case. But that’s not the audience they are speaking to, and for the many, many Americans who didn’t pay attention in class, there’s a certain logic to this. Meaning, President–>high authority. Lower courts–>low authority. They’re waiting for the Supreme Court to say no, and as we all know the Supreme Court’s decision on executive immunity is pretty much how we got here.
What happens if a majority of the Supreme Court decides to try and put the genie back in the bottle? What happens when Trump et. al. decide to ignore their ruling? Who enforces…any of it?
I’ve worked in PR a long time, and if there’s one thing I’ve learned is that a crisis is usually a crisis well before it’s broadly realized.
Indeed.
Polarization + partisan affiliation leading to substantial team-oriented rationalizations + uncompetitive elections + minority-empowering elements of our system equals a serious problem if we think that this just gets solved because people wake up (if I can even use that metaphor any longer, given recent EOs) and understand what is going on.
@Tony W: Without getting into a debate about the War Powers Act, that was, at least, a constitutional process whereby the Congress created a process (indeed, to theoretically curtail presidential actions).
It may have been a bad idea, but it was not a crisis.
@Charley in Cleveland:
How many sanctioned lawyers would it take for DOJ lawyers to get nervous about defying courts?
The number of DOJ lawyers willing to defy courts might be depleted also.
@Jen:
Indeed. Trump loves SCOTUS right now. But he will cease loving them if they rule against him in a way that truly derails his project. (Of course, I fear they will go along with it–I have little doubt Alito and Thomas are fully onboard, and probably Kavanaugh. I am not fully certain about Gorsuch, so it boils down to Barrett and Roberts).
Right now, all politicians are doing are talking. Talk is cheap. Propose some solutions, even if it is a low probability of success getting them through Congress. E.g, move the US Marshal Service to the Judicial Branch and out of the Justice Department. Don’t start sanctioning just the top, sanction the foot soldiers, make their lives miserable and afraid.
@Tony W:
I strongly agree, as I’ve written about this problem elsewhere. Not insisting on declarations of war kinda sorta made sense because of the Cold War balance of terror and fears of escalation, but that’s really just an excuse. The mischief caused by giving the President the ability to wage war without a declaration already deformed the Constitutional order in many ways, including the “imperial presidency.” Now, we have a completely supine Congress, a “unitary executive” (a polite term for something far worse), and a presidential claim to decide when we’re at war or not (with migrants, absurdly).
@James Joyner: I wouldn’t characterize defunding agencies (as funded by Congress), or eliminating them altogether (as created by statute), as merely “pushing the envelope.”
@Kingdaddy: It’s certainly extreme, although arguably no more than wartime usurpations of power by Lincoln, Wilson, and FDR. Or, indeed, much of the New Deal program—which was struck down repeatedly by SCOTUS until the court-packing threat caused them to heel.
Now, I think those precedents were reasonable policy responses to legitimate national crises and that the “crises” claimed here (Invasion at our southern border! Fentanyl!) are mostly manufactured. But we’ve routinely waved off government by executive fiat under less than crisis conditions (indeed, Obama and Biden routinely did so), so it gets harder to alarm people now that Trump is doing it, simply more recklessly and vigorously.
The other C-word: Consequence.
Trump and mob “flout” our courts and laws because there is no consequence, no immediate consequence.
There is no consequence because the separation of powers have been erased —- erased because our 250 year system of checks & balances government is now largely beholden to the aggregated political force of one man and his cultural movement. We didn’t have enough fail-safes in place. Too many “open ports.” Brute force hacking by once unfathomable amounts of money at the disposal of hard gamer mentalities hell bent on power.
In 2026 or 2028 may see the “consequences” of a broken, adulterated election process. Or, “we will never know,” as spouted by Musk’s unfiltered kiddo, apropos to —- what we’ll may never know.
@charontwo:
@Scott:
The courts should absolutely be ordering the DOJ attorneys that appear before them to self-report themselves to the bar. They should be ordered to state on the record whether they passed the court’s order up the chain and any defiance by the administration should be considered a personal ethical violation by the attorney.
In some cases they should hold the attorneys in contempt and put them in the court house jail. Make it a civil contempt with a purge of compliance by the Administration. The goal would be that the DOJ would hollow out as attorneys quit rather than being ground to paste.
But yes, the courts should ABSOLUTELY start grinding lawyers into paste. The upshot is, almost no non-lawyers will care. My profession should get a Space Balls style shot up its nose.
“Cunts”? That’s what my British colleagues call Musk and Trump.
We have no effective way to limit the power of POTUS if he (deliberate choice of pronoun, sorry) decides to act out of norms and break the law. The idea that Trump’s cult (of personality) will turn on him is preposterous. Congressional Republicans support what Trump is doing, even if illegal. Even if it harms their constituents theyarent going to say much for fear of being primaried. That leaves the courts. At the very best, even if every court decision went against Trump it will take years before they decide all of the cases. Even the ones that get accelerated wont be resolved quickly and Trump has made it clear they just claim they are appealing and will ignore court orders while they are on appeal.
Finally, it will come down to SCOTUS. I think their decision on immunity guides us on what they will do. They will mostly rule in favor of Trump but will rule against some relatively inconsequential stuff so they can claim to be balanced and following the law. In essence, Washington was correct. Parties, with the extreme tribalism we have now, have undermined our form of government.
Steve
@Charley in Cleveland:
I’m not sure but what, in the long run, this cure is as bad as the disease. The attorneys’ guild (governing bodies) already has a disturbing amount of power.
It’s not a constitutional crisis as long as Trump can cloak his actions in national security — and that’s a consistent theme across the immigration actions. The work in dismantling agencies will be chiseled into something less objectionable and finally approved by SCOTUS. The actual constitutional crisis is not the failure of SCOTUS, it’s the lack of action by Congress, and no court can intervene to make them act. I don’t know where exactly this ends, but it doesn’t end as a republic (if we even have a functioning republic now).
At the end of the day, who is going to do anything?
Robert’s called out Trump, although not by name, and Trump just threw it back in his face.
I’ve said it here before; It’s now a MAGA country and there is no one coming to save us.
War of the judges.
@Daryl:
Exactly.
The only outcomes I can see are acquiescence to fascist America, civil war, or secession and civil war.
Much is made that the felon has no mandate, since he beat Harris by a small margin and more people voted for someone else. All true. But this also means things are pretty evenly divided, and there’s no hope of a sound drubbing in the midterms, if they go on as near to normal as can be expected, nor in 2028, if there are even elections in 2028.
There doesn’t seem to be a common definition for “Constitutional Crisis” even among the experts James cited, so a lot of this is like the Justice Potter view on pornography.
My personal view is that we are/will be in a constitutional crisis when the constitutional system breaks down to such an extent that it threatens the stability of the government. The past “creeping normalcy” and ratcheting increase of Executive authority (which I’ve often mentioned and complained about) wasn’t a crisis because it didn’t impact the stability of the government. However, this history has brought us closer to that point, and now Trump has condensed the equivalent of a couple of decades worth of incremental change into a couple of months of norm-breaking and challenges to the status quo. That has been a shock to the system, but I don’t think we are at the crisis point yet (government instability), but the potential is certainly there and can be seen, and the Trump admin is driving us quickly in that direction in what may turn out to be a very dangerous game of chicken.
We’re in a crisis, and the constitutional part is downstream from that.
There are many advances in executive power stemming back to 9/11 which Trump seems intent on pushing to the nth degree. The difference between past administrations is that the entire Trump administration is composed entirely of thugs, morons, and frauds.
During the protests in 2020 I expected the possibility of being arrested or being maced by a random cop for no reason. I did not think it was possible that 45 terrified Amerifat cops would start firing into a crowd because they thought the crowd was aligned with terrorists or that we would get arrested and then be transferred to some prison in El Salvador on the same night because we’re with Hamas.
With protests going forward, I expect that now, and I expect the cops to be cleared and given awards and I expect pointless debate over whether or not I have any rights as a human and/or an American citizen or if it matters that the ketchup-stained AI-written evidence proving I’m a terrorist is total bullshit.
We’re in a bad place and people who support Trump seem incapable of mortification or embarrassment, or even admitting that they were wrong.
Response deleted because I responded to someone on Santa’s Naughty List.
ETA: Gah, sorry Dr. Taylor, I’d forgotten that detail.
Remember Kathy’s First law: there are downsides to everything?
The (very small) downside of OTB being back is the OTB trolls are finding their way back as well.
@Andy:
Agreeing that the term lacks clarity, if you are at system breakdown, you are well beyond “constitutional crisis.”
@Kathy: Indeed.
Just a reminder: Paul L. is on the disinvited list.
@Steven L. Taylor:
If Barrett and Roberts (and maybe Gorsuch) buck Trump’s unconstitutional efforts, I’d bet Trump would do what lots of people urged Biden to do, but he was too conservative to try – pack the court. There are a number of rabid Trump judges and lawyers eager to be on SCOTUS.
@Andy:
From where I stand, we’ve been in a state of unstable government–budget by CR, wide fluctuations in policy goals and aim, out of balance relationships among executive, judicial, and legislative branch function, and other similar dysfunction–for 40 or so years. Some will say longer and look back to Brown and SCOTUS doing what Congress wouldn’t. The social contract stayed broke after the war of Northern aggression and simply can’t be cobbled together anymore.
And the dismantling is gonna be a beeyotch. Good time to be old. I only wish I’d been born earlier.
ETA: Rats! Paul L. posted and I missed it. Oh well …
On the topic of Constitutional crisis, Paul Krugman has a very apt Substack post. He interviewed Kim Shepple, an expert on Hungary and Orban. Best reasonably short exposition I’ve seen of where we’re at. We see Trump as sui generis, but he’s one of a type. (The post mentions it’s Part II. It’s sufficiently complete without Part I.) A few highlights:
She does note that a presidential system is more resistant; that federalism leaves a lot of Blue state power centers; that the Supreme Court takeover may not be complete, that Trump, Musk, Bannon, and Project 2025 may not be well coordinated; etc. But the biggie is that Orban took over in a real economic crisis. But, her optimistic scenario is:
@Andy:
Which is like holding off on the cancer diagnosis until the patient is dead.
@Kingdaddy:
Schrodinger would not see that as a problem.
I honesly believe that the Trump/2025 Strategy is to hand off urns of the ashes of the Musk-shuttered Federal Agencies and Departments to the Republican Congress, who will then say, ‘well there’s not much left here, so we might as well vote to eliminate these Agencies and Departments.’ No real hearings, no discussions, no problem.
@Andy:
Just noting that from Hitler’s appointment as Chancellor until early 1945 the government of Germany was very stable. There’s an old line from the lawsuits over the Corvair. Concerning the charge the Corvair was unstable, a witness said, ‘If you’re headed for a tree, stability is the last thing you want.’
@Rob1:
The head of SS, Dudek, is talking about shuttering SS.
And they seem to be seriously mis-underestimating to shitstorm that would ensue.
Commerce secretary Lutnick;
Wanna bet???
@Steven L. Taylor:
and
@Kingdaddy:
“Threatens” the stability of government is not at the point where the government is actually destabilized.
To make an analogy, the threat of an invasion of Ukraine in late 2021-early 2022 reached the point of a crisis well before the actual invasion.
@just nutha:
I think you make a very strong argument here. Our level of dysfunction before Trump took over two months ago was certainly not trivial.
@gVOR10:
Germany only became “stable” after Hitler murdered any opposition figures and seized dictatorial control. This was after a long period of crisis and instability, which was a major factor in Hitler gaining power. IOW, Hitler was the culminating end point of a long crisis in German governance.
@Kingdaddy:
People can quibble over whether the crisis we are in merits the “constitutional crisis” label or whether it is a system failure (which reads to me as some concession that the dysfunction is baked in and beyond remedy). But, to my mind the GOP administration’s (it ain’t just POTUS) crossing the line into willful flouting of judicial orders became inevitable when SCOTUS ruled that the states couldn’t remove Trump from ballots in 2024, if not sooner.
How can you have Rule of Law when a convicted felon and indicted insurrectionist can be allowed to hold high public office? It is fundamentally incoherent that the Officer charged to execute the laws of the nation can be a criminal. Even in a popular democracy, an inattentive, easily manipulated electorate shouldn’t have the power (or perhaps the responsibility) to decide that criminality determined through due process can be negated because the convicted is popular – which is exactly what Trump claimed his popular vote win has done.
The outcomes we are seeing now were preordained by the credence given the “Lawfare” fabrication by the GOP and their lackeys in SCOTUS going back to the first Trump administration.