by Dylan Matthews · February 13, 2017
Not yet. But maybe soon?
Are we in a constitutional crisis?
Well, no. As silly as the president declaring “SEE YOU IN COURT” in all caps on Twitter is, it’s not exactly a sign that he’s willing to bypass the judiciary altogether, which really would portend a crisis.
But with Trump tweeting attacks on “so-called judges,” and warning that decisions contrary to his wishes could lead to terrorist attacks, and Customs and Border Patrol officials at the nation’s airports initially ignoring court orders and according to some reports doing so on orders from the White House, it’s an understandable worry to have. Slate’s Mark Joseph Stern was one of the first to invoke the “C” word, the day after the executive order came down. On Thursday, Sen. Richard Blumenthal (D-CT) declared, after President Trump started openly disputing that his Supreme Court pick had criticized Trump’s treatment of the judiciary, that the country was, “careening, literally, toward a constitutional crisis.”
So I decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.
“Trash-talking the federal courts on Twitter does not create a constitutional crisis,” Yale’s Jack Balkin explained. “It’s a really bad idea, but there are many really bad ideas that are not constitutional crises.”
But most experts said that if Trump were to start defying court edicts, that would very possibly qualify, and even his mere rhetoric ramps up conflict with the judiciary in a counterproductive and perhaps dangerous way.
And they were sure to add that even if we’re not in a constitutional crisis, that doesn’t at all imply that what is happening is normal, or moral, or fair, or decent. “I don’t like the phrase ‘constitutional crisis’ because it has this contention that unless the whole system is up for grabs, we shouldn’t care about an 18- or 19-year-old kid in Chicago who is so anxious about being deported he takes his own life,” Aziz Huq, a constitutional law professor at the University of Chicago, noted. “Crises happen everywhere on a micro scale. Just because they are happening to people on the margins doesn’t make them less important.”
Defining a “constitutional crisis”
The Civil War: definitely a crisis.
Library of Congress
There are two major papers in the American constitutional law literature on the concept of a “constitutional crisis.” The first, from Princeton political scientist Keith Whittington, was written in the wake of the impeachment of President Clinton and the contested 2000 election, both of which provoked fears that the US was either in, or barely avoided, a constitutional crisis. Whittington argued that neither came close to qualifying.
“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).
So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.
The secession crisis of 1860 was, Whittington argues, both an operational and a fidelity crisis. It was a fidelity crisis because some political actors — namely the seceding Southern states — refused to obey the dictates of the Constitution and explicitly rejected its power over them. But it was an operational crisis too, because, “the text of the Constitution was silent on the question of secession, and it provided no clear mechanism for resolving the contested question of whether and how states could secede from the Union.”
Whittington told me via email that he doesn’t think the current standoff between Trump and the judiciary qualifies as either a fidelity or operational crisis. While Trump’s comments are, he says, “certainly disquieting,” he adds that “disagreements between the executive and the courts are not uncommon, and are sometimes expressed rather strongly.”
What would change matters is if Trump were to receive an unfavorable ruling from the Supreme Court — and ignore it. “If the president were really to contemplate ignoring a decision by the U.S. Supreme Court, we’d be in nearly uncharted waters,” Whittington adds. He noted that the US has come close to that scenario in the past, but that in just about every case either the president or the Court backed down before an explicit violation occurred. For instance, in 1974 the Supreme Court ruled that Richard Nixon had to hand over the Watergate tapes to the special prosecutor’s office, and Nixon briefly considered not complying, as he strongly felt the president should not be subject to judicial proceedings outside of impeachment. But strong pressure from congressional Republicans and the threat that he would be impeached anyway caused him to back down and comply.
Balkin agrees that open defiance of clear court dictates could qualify as a crisis. He and UT Austin’s Sanford Levinson published the other widely cited article besides Whittington’s categorizing and analyzing constitutional crisis. In addition to Whittington’s two categories, they add a third: when two or more political actors each strongly believe the other is violating the Constitution or constitutional norms. In fidelity crises, it’s clear that only one side is violating the Constitution. In operational crises, it’s clear both sides are obeying the Constitution. In type three power struggle crises (“power struggle” is my term, not theirs, but it’s clearer than “type three”), each side has a real argument that it’s obeying and the other isn’t.
Balkin and Levinson offer a number of examples of power struggle crises, including the Nullification Crisis (in which South Carolina claimed it had the constitutional right to not enforce a federal tariff, Andrew Jackson claimed it didn’t, and each had arguments for why they were right), the conflict between Andrew Johnson and Congress over each one’s role in Reconstruction, and the Little Rock Crisis in 1957 between the government of Arkansas and the Eisenhower administration.
“We are not having a constitutional crisis, at least not yet,” Balkin told me via email, elaborating on a blog post he published on the topic. “Trump has not announced that he is going outside the Constitution, and he has not openly defied a judicial order. … If he does either of these things, and he won’t back down, then we would be in a constitutional crisis.”
Maybe not a crisis, but “hardball”?
No expert I talked to, including Whittington and Balkin, characterized the current situation as a constitutional crisis. “As far as we know, the executive is complying” with court orders, Yale’s Heather Gerken says. “That’s not a constitutional crisis. That’s a constitution working.”
Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of “constitutional hardball”: when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side.
For example, he argues that Republican efforts to redistrict congressional seats in Texas and Colorado in 2003, after they had already redistricted for the census, count as constitutional hardball, as does the impeachment effort against Bill Clinton, as does Democrats’ obstruction of appellate nominees in the early George W. Bush administration. In none of those cases was anybody acting outside their prerogative per the Constitution. But in every case, they were using those powers in new and tough ways that caught their opponents off guard.
“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”
But he was open to the idea that Trump’s rhetoric against the judiciary could count too. “The more or less formal definition of constitutional hardball is that it consists of actions that are inconsistent with settled ways of doing things. In a political context, statements and rhetoric count as actions,” he explained. “I want to say I didn’t draw that distinction when I initially developed the idea. Now that we’ve had more examples, rhetoric can count as a form of constitutional hardball.”
Constitutional “showdowns” are important, but not crises
Certainly one way to avoid a constitutional showdown.
Bill Pierce/The LIFE Images Collection/Getty Images
The University of Chicago’s Eric Posner and Harvard’s Adrian Vermeule introduced the parallel concept of “constitutional showdowns,” in 2008. The idea is similar to the idea of hardball, but focuses more on the precedents that such conflicts can create. A constitutional showdown, Posner and Vermeule wrote, is a “a disagreement between branches of government over their constitutional powers that ends in the total or partial acquiescence by one branch in the views of the other and that creates a constitutional precedent.”
They cite, as examples, the conflict between Nixon and the Supreme Court over the Watergate tapes (in which Nixon totally acquiesced and a new precedent was created limiting the president’s powers), the conflict between the Court and Harry Truman over seizing a steel mill (Truman backed down, creating another precedent limiting presidential powers), Abraham Lincoln’s refusal to obey an order from Chief Justice Roger Taney to release a man arrested by Union troops in 1861 (which created a new precedent enhancing the president’s war powers), and Andrew Jackson’s refusal to help enforce a Supreme Court ruling in 1832 that Georgia’s laws did not apply in Indian territory (which set a precedent, since contradicted by events like the Little Rock Crisis in 1957, of presidents not always acting to enforce federal rulings against state governments).
Posner has been clear that he views Trump’s attacks on the judiciary as a very serious matter. He used a New York Times op-ed to urge Supreme Court nominee Neil Gorsuch to condemn Trump’s behavior (presaging Gorsuch’s comments that Trump’s rhetoric is “disappointing and disheartening”). But he has also written that the present situation doesn’t rise to the level of “constitutional crisis.” “If Trump ordered border agents to disregard judicial orders blocking the executive order,” that would qualify, he told me in an email.
But for now we’re in a constitutional showdown of a more ordinary variety. “I think showdowns are unavoidable because constitutional rules do not necessarily keep up with the times (while amendment has proven to be too difficult to revise them in a timely fashion), and government depends on cooperation among different institutions,” Posner said. And who is right in each showdown can vary. You can think it was right of Lincoln to claim the power to suspend habeas corpus in wartime, but not for Jackson to decline to use federal force to protect Indian rights (and then to use it to commit ethnic cleansing).
“But,” he added, “the rule that the president obeys a judicial order in peacetime is ancient, and it is well established to be a good one except if the judiciary goes haywire, which is certainly not the case here.” Violating that norm would go further than Nixon, Truman, Lincoln, or even, arguably, Jackson went. And Trump ordering border agents to enforce his executive order when judges are telling them not to would violate that norm.
Suppose we get into a crisis. Could Trump then be stopped?
While no one I talked to declared the situation right now a crisis, many expressed concern that President Trump is all too willing to provoke one.
“Remember Trump’s statement before the election: ‘I’ll accept the results, if I win’?” Alice Ristroph, a law professor and political theorist at Seton Hall who has written about constitutional crises, says. “I think this administration will accept and preserve the basic structure of the American constitutional system if that system can be manipulated to give the administration what it wants. If Trump is overruled by the courts, who knows what will happen. Maybe a crisis.”
So what happens then? A lot depends on how institutional actors respond. Aníbal Pérez-Liñán, a comparative political scientist at the University of Pittsburgh who studies presidential democracies in Latin America, including constitutional crises experienced there, notes, “Many countries modeled their constitutions after the US, but most presidential regimes have experienced much more turbulent histories. The reason for American stability lies in the fact that politicians in both parties historically exercised civility and reached deals to process their disagreements.” That norm, of course, would take a major battering if Trump rejected a Court edict.
In that case, there would be two broad possibilities. One is that Trump, despite an initial rejection, somehow backs down. For that to happen, someone would have to persuade or force him. It could be his close advisers telling him he’s gone too far. It could be his own vice president and Cabinet, who could threaten to remove him by invoking the 25th Amendment. But institutionally, the people who are supposed to keep him in check in a case like that are members of Congress.
“The crucial thing for both the Court and the president is how Congress, and particularly the congressional Republicans, position themselves on a potential conflict,” Whittington says. “If the Republicans make it clear that they would not support presidential defiance of the Court, it would strengthen the hand of the judiciary. … It would seem unlikely that congressional Republicans, or even the president’s own Cabinet, would be willing to do lasting damage to the courts over these sorts of normal policy disagreements.”
But what if no one stops him?
A protest in front of the Polish Constitutional Tribunal in 2016.
Mateusz Wlodarczyk/Pacific Press/LightRocket via Getty Images
And what if no one keeps him in check? Then you get the possibility that the Court will be duly chastened, a new precedent will be set where its powers are greatly reduced, and the president emerges more powerful than before. “Purges of supreme courts or constitutional tribunals have been a common affair in Latin America, where many presidents have little tolerance for dissent,” Pérez-Liñán notes. Poland’s governing party has recently been cracking down on its Constitutional Tribunal in similar ways, raising serious concerns that the rule of law is eroding and democracy is backsliding.
Tushnet argues that a move like this by Trump, unchallenged, needn’t necessarily amount to democratic backsliding. It would usher in a new “constitutional order,” in Tushnet’s words, but such transitions can be either good or bad and aren’t always harbingers of democratic collapse.
“It might be that what the president is on the way to doing is becoming an authoritarian unconstrained by law entirely,” he explains. “But it could be that the president’s position is, ‘With respect to border control and national security, the courts have overstepped their bounds, I’m acting to make sure we have an appropriate relationship with the courts in that domain, and I don’t have a general quarrel with the rule of law.’ … It could be a component of a new settlement of relations among the branches that would not be a departure from core notions of the rule of law.”
“I don’t like what Trump is doing,” he clarifies, “but I’m willing to present it in a conceptual or constitutional theory framework that is independent of my particular views of this particular president.”
Huq, of the University of Chicago, notes that it’s hardly unusual for executive branch officials to drag their feet in implementing court decisions. Think of state officials failing to desegregate after Brown v. Board of Education, or the aftermath of Boumediene v. Bush, a 2008 Supreme Court decision that ruled Guantanamo detainees had a right to federal court review of their detention but that did not result in many detainees getting that review or being released, due, Huq argues, to “internal bureaucratic resistance.”
“But,” he also notes, “it’s hard to think of examples when the resistance starts off before the cases have been fully litigated. Where there’s zero willingness, up front, to comply. I can’t think of cases where resistance and refusal to comply have been coupled with an attack on the judiciary and an attempt to offset blame for bad political outcomes on the judiciary. That’s another example of a norm with respect to the Constitution that we’ve just blown apart.”
That’s what makes Trump’s case so different. In a recent paper titled “How to Lose a Constitutional Democracy,” Huq and his University of Chicago colleague Tom Ginsburg argue that a wholesale “authoritarian reversion,” along the lines of Hitler’s rise to power in 1933 or Gen. Sisi’s coup in Egypt in 2013, is unlikely in the US, for a variety of reasons. But “constitutional retrogression” — the slow erosion of democratic norms and institutions — is becoming more common abroad, and poses a real risk for the US. That’s the process by which Vladimir Putin’s Russia, Hugo Chávez’s Venezuela, Recep Tayyip Erdoğan’s Turkey, and Viktor Orbán’s Hungary have moved away from democracy and toward authoritarianism.
In other countries, constitutional amendments to bolster incumbent leaders’ power have played a significant role. But Huq and Ginsburg don’t think that’s likely, not least because Article 5 of the Constitution makes amendments extremely difficult to pass. Instead, they write, “The most likely motor of antidemocratic dynamics in the American political system is the presidency, acting with the acquiescence of a co-partisan Congress.” Helping along a presidency-driven retrogression would be an acquiescent judiciary (perhaps chastened by a president who doesn’t obey Supreme Court rulings he doesn’t like) and an erosion of electoral competition due to, say, voter ID laws and partisan districting.
“What I would count as democratic backsliding is a substantial negative change along three different elements or institutions happening at the same time,” Huq says. “Those three elements are the necessary institutional foundations of democracy, such that if you don’t have those institutional features, you can’t really have democracy. One is the possibility of political competition. The second is the rule of law. The third is the quality of liberal rights of speech and association that are necessary to the democratic process.”
Trump ignoring a court order would harm the rule of law but not necessarily the other two; in itself, it might not constitute backsliding. It could just be a rearranging of power between the branches, as Tushnet suggests. But Trump’s past actions and statements suggest the other two criteria could be in danger too.
Huq doesn’t think we’re in a constitutional crisis (“I don’t know what the term ‘constitutional crisis’ means, which I feel like is a very law professor thing to say,” he jokes) or that we’re engaged in democratic backsliding. But he thinks the danger is real and worth considering.
“My view,” he says, “is that we’re very vulnerable.”