Constitutional scholars are experiencing fifteen minutes of fame. In these pages and others, on podcasts and TikTok, before the cameras and in front of microphones, it seems constitutional experts are everywhere. That’s a good thing.
Except when it isn’t.
Constitutional commentators are used to giving their opinions and predicting the future. They frequently remind us of what the Framers intended and what SCOTUS is trying to tell us. But we’ve never seen anything like this level of analysis and prognostication. The frenzied disruption of political norms and constitutional conventions oozing from the White House will do that. The most common question posed to America’s constitutional whizzes: Are we in a constitutional crisis?
Some of the commentary is pure hyperbole. In fact, a lot of it is pure hyperbole, meant to increase ratings or sell more newspapers. And some of the commentary from America’s leading authorities is measured, erudite, and insightful.
But some of it is just plain wrong.
So, let me try my hand at bringing clarity to the political environment we’re currently in. Let me take my fifteen minutes. And I’ll do so through the medium of a fictional podcast interview. Lucky me, I’ve been invited to join Jamie “ AMBMCA ” Matty-Sen on her broadcast entitled, “If Men Were Angels.” Joe Rogan is sweating.
Jamie: Welcome, Professor Breslin, to our show.
Me: Thank you, Jamie. It’s a real pleasure to be here. And, please, call me Beau.
Jamie: Okay, Beau, let me start with THE question on everyone’s mind: Are we in a constitutional crisis right now?
Me: No, Jamie, we are not. At least not yet. I know that’s not a popular answer, especially among my friends on the Democratic left, but if we measure a constitutional crisis by whether the institutions of government are no longer functioning as they were designed, the answer has to be no. Elections are happening; transitions of power have been peaceful (at least to this point); congressional leaders are still pushing bills and counting votes. Congress passed a budget and the President signed it into law. The President is executing the law, a little chaotically I might add, but he is. And perhaps most importantly, the courts, for the most part, are holding the line on illegal and unconstitutional activity coming out of the White House.
Jamie: You say, “for the most part.” What do you mean?
Me: What I mean, Jamie, is that the federal judiciary has so far done its job. In almost every case it’s been a bulwark against the Trump administration’s unprecedented power grab. It’s been a “check” intended to “balance” the tripartite federal government. Federal judges have told the Trump administration that its razing of USAID is “likely unconstitutional.” Federal judges have blocked Trump’s attempt to roll back several green policies. Federal judges have rejected Trump’s order banning transgender people from military service. Even the United States Supreme Court, a court historically reluctant to wade into these types of contests, has dealt Trump a blow. And, most recently, Chief Justice Roberts rebuked the President for threatening the entire judiciary with the weapon of impeachment. He reminded Mr. Trump that the High Court—weakened for sure and without significant enforcement power—is not to be messed with.
Jamie: True, true. That did happen.
Me: If you need even more evidence of the federal judiciary holding its ground, Jamie, consider that Trump officials are also calling this moment a “constitutional crisis.” They say that the crisis isn’t because of a runaway executive, as Democrats say, but because the federal courts are effectively slowing down the President’s steamroll. The system’s working. The courts are holding up, Jamie, so much so that even Trump’s advisors are using the hyperbolic language of a “constitutional crisis.” Perhaps the problem is that we are too quick to get to a verbal defcon 10. Are we in a constitutional crisis? No. Not yet.
Jamie: But what about the administration ignoring Judge Boasberg’s order on deportation?
Me: I’m no Trump apologist, Jamie. I’ve been a moderate Democrat most of my life—more Pete Buttigieg than Bernie Sanders. But, again, we should be careful with language. I wouldn’t say the administration “ignored” Judge Boasberg’s ruling. They may have flouted it or scorned it, but they had a rationale for not giving up the information Judge Boasberg requested. It may not be a rationale some folks around the country wanted to hear, and it may have a loose tether to the truth. But it was a rationale often used—even by Democratic presidents—to defy District Court rulings. Trump’s lawyers consistently cited “national security” as the reason for stonewalling. “We can’t give you the information you want, Judge Boasberg, because it may compromise national security.” You know, Jamie, it reminds me of another standoff between the president and a federal District Court judge. The most famous defiance of a district court order came more than fifty years ago when Richard Nixon refused to comply with Judge John Sirica’s issue of a subpoena. Judge Sirica wanted Nixon to give up the Watergate tapes, and the president refused. And what did Nixon cite as his reason for refusal? Executive privilege. I can’t give up the tapes, he said, because they contain sensitive secrets. Nixon even went to the extraordinary step of writing a personal letter to Judge Sirica explaining his reasoning. “I must decline to obey the command of that subpoena,” Nixon wrote. “In so doing I follow the example of a long line of my predecessors who have consistently adhered to the position that the president is not subject to compulsory process from the courts.” That famous—or rather infamous—standoff was settled only after the case worked its way up the appeals process. The point is that Nixon flouted Judge Sirica’s mandate and it took the Supreme Court to break the impasse. The same may be true in the deportation case.
Jamie: So, then what sort of crisis are we in, Beau?
Me: Ah, now that’s the right question, Jamie. Thank you for asking it. I would say we are in a political crisis, not a constitutional one. No matter what side of the aisle one sits on, we should all agree that we do not want an overly powerful executive and a completely impotent Congress. Unfortunately, we have both right now. Even Alexander Hamilton would be uncomfortable with the amount of energy we see in the executive, and almost every political leader in American history would be ashamed of the modern Congress’ collective shrug of indifference. I have serious problems with the courts— U.S. v. Lopez, Bush v. Gore, and Citizens United were just plain bad decisions—but my beef with the judiciary pales in comparison to my criticism of a Congress that places party about country, that defers to the other institutions of government to do the heavy lifting on most cultural issues, that is inhabited by professional politicians who want more than anything just to stay in power, and that lacks any degree of courage. It’s sad, really.
Jamie: Fair enough, Beau. I’m afraid that’s all the time we have right now. Thank you for being on the show, and please join us next time as we ask the question, “Whatever happened to America’s 5’3” diminutive, hypochondriac politicians? Why don’t we see more of those guys these days”? Until next time.
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