On Constitutional Crises

If you’ve been paying attention to politics in the last few weeks (even if you’ve desperately tried to avoid it but haven’t quite defriended those people on social media) you’ve probably seen the word “constitutional crisis” pop up a few times. As someone with a legal background who has taught Constitutional Law for over a decade, I’ve had a number of people send me emails or catch me in the halls to ask about our country’s current situation, and it seemed like the In All Things blog would be a great venue to try to address the range of concerns I’ve heard.

Ultimately, I’m prone to a wait and see approach to many of these issues, as what President Trump says and what he ultimately does are often different, but I also think that the term “crisis” is the wrong way to think about the proliferation of novel questions that a Trump presidency brings about; our country could actually come out stronger from these sorts of challenges.

What constitutes a crisis?

To start, why spend time on definitions? Why would it matter if something is or isn’t a crisis? The rhetoric during a Trump presidency has a tendency to run to extremes, so how we define terms can help keep us grounded. We saw it four years ago, and it hasn’t taken long for things to get overheated again.

I have progressive friends who are just positive that the U.S. is Germany in the early stages of Hitler’s regime, while I have conservative friends who celebrate a president sailing the nation into glory on an ocean of liberal tears.

While I’m self-aware enough to recognize that the lawyer in me always loves semantics, I think the issue gains significance for everyone in times where the breakdown of our social discourse is such that we have radical division in our sense of what’s even going on.

So when do we have a constitutional crisis? We could look to various definitions, but Wikipedia explains it well enough: a “constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve.” In other words, a novel situation pressures the government in ways that it is structurally incapable of resolving. A genuine constitutional crisis threatens the end of the government as we know it.

If one listens to the news, President Trump provoked several such crises in his first term, and a number of outlets claim that he is doing so again with proposed actions like shutting down USAID or freezing all federal grants. To follow this logic is to consider our very democracy imperiled as our system is incapable of protecting itself from the depredations of a would-be despot.

Isn’t that exactly what’s going on?

Not quite.

While I understand the concern, it sells short the resiliency of the U.S. system of government, particularly the role of our court system. Whenever there is a novel question of the balance of power between Congress and the President, we have a court system capable of helping to sort out the issue. It’s absolutely true that Trump’s last administration brought about a high number of these sorts of questions, (enough to spawn what eventually became the “What Roman Mars Can Learn About Con Law” podcast). The thing is, Trump abided by the Supreme Court’s ruling in these matters, and the result of many of these questions has been a refinement of our understanding of the balance of powers in ways that have often been helpful. In general, if the courts are a catch-all for novel questions of law, then the fact of new questions is not itself a crisis.

Interesting Times

I find challenges like what has happened to USAID interesting, and I admit to a little bit of excitement over its potential resolution. There are times where Congress has acted to restrict Executive authority, and subsequent presidents have never conceded the point. One example that I teach every year is the War Powers Resolution, which was passed into law over Nixon’s veto in 1973. No case has ever resolved the questions that this law raises over the balance of the war powers that the Constitution grants to both the President and Congress.

Some of the big questions of the moment center on the Impoundment Control Act, which was passed in 1974 to prevent President Nixon from continuing to defund government programs that he didn’t like. This Act is central to debates over the freezing of grant funds and related to the debate over the transformation of USAID. It raises the question of the balance of powers between the President, who has the full extent of whatever power is granted to the Executive by the Constitution, and Congress, who has the power to authorize and direct spending. The reality is that while we’ve had Congress authorize and fund the expansion and creation of new executive agencies, we’ve not had many presidents looking to close them down. We’re used to the Executive doing more, but what about less? It’s an interesting question, and, although I don’t think the President is likely to prevail with his novel theory, it would help settle the question.

At the same time, comments made by Vice President Vance suggest something that would meet the definition of a crisis. Vance has proposed a theory reminiscent of President Thomas Jefferson’s views that the Executive has almost unchecked authority to determine what executing the laws means. Specifically, he has suggested that if the Supreme Court rules against the President on things like shuttering USAID, the President should ignore the Supreme Court and do it anyway. In our system of government, the judiciary branch has only persuasive authority and no real way to force the other branches to concede to its interpretation of the Constitution. The notion that the President might ignore a judicial order is called nonacquiescence, and it has only ever really come up before in Ex parte Merryman, where Lincoln ignored a ruling that his suspension of the writ of habeas corpus was unconstitutional. That crisis was solved relatively quickly by Congress acting to authorize the suspension. If the President were to raise the specter of non-acquiescence again, the only remaining structural safeguard would be impeaching the President for violating the Constitution. In sum, I understand why people are concerned, as a crisis is genuinely possible, but Trump’s response to concerns so far has been, “I always abide by the courts. Always abide by them, and we'll appeal." This signals that a crisis is not yet upon us.

Hope, Fear, and Antifragility

Of course, some may have little faith in Trump’s intentions or in the likelihood that Republican-appointed justices will check a Republican President. I could offer assurances that I understand what Trump is planning and it will all be okay, but I don’t have that sort of insight. I could cite verses like Philippians 4:6, to say, “Don’t be anxious; just pray about it,” and I think we can find genuine peace in uncertainty there, but that can also come off glib, like saying, “Go in peace,” to those in desperate need. Instead, to calm some anxiety and hopefully allow guidance from places like Philippians to take better root, let me offer an argument about the character of our government.

Trump is provoking new and interesting questions about the nature of our government, and there is a risk that things go awry, but the funny thing about American history is that there have often been times when it seemed like the wheels might come off, but they haven’t yet. This doesn’t mean that things can’t go wrong, but it does mean that, for all its apparent fragility, there is a remarkable resiliency to the American system of government that has made our Constitution the longest-lasting modern constitution. Sometimes we think of an ideal government as one where no challenges arise. That’s not only idealistic; I would argue that this represents an imagination around our government as a sort of machine, and this metaphor sells short the resiliency of more dynamic systems.

Machines can be very complex, but they are ultimately a system of mechanical forces that wears down over time. That is, stress on my car’s engine will cause it to eventually break down, and if I don’t go in and have a mechanic fix it, those problems won’t generally get better. If our government is just a big machine, then the stresses that we’ve seen put on it over the last several presidencies suggest that the total breakdown of society is inevitable unless we get in there and radically rework things.

Dynamic systems, like our bodies, are different. So long as I don’t injure myself, putting stress on my joints and muscles causes them to grow stronger, not weaker. Children exposed to germs develop better, not worse, immune systems. This is a phenomenon known as antifragility, and it’s a feature of the dynamic interplay of the American system of government, too. That is, when there is a stress of novel issues that question how the government works, the response of the branches is dynamic and helps to resolve those issues for future generations. Our government becomes stronger for the challenges that it overcomes, as the interplay of the branches gets better defined. This is the genius of judicial review, and, so long as this power is respected, the pressure against norms of our government could actually result in a strengthening of those norms.

Overall, my encouragement would be to extend a little more trust in our system than we may be prone to have these days, wait to see what results, and dial back the rhetoric that stokes so much anxiety. There is ample reason to yet have hope for our Republic.