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.
