Are We on the Verge of a Constitutional Crisis?

This question has been thrown around a lot, but what exactly is a constitutional crisis?

Was Trump’s executive order restricting entry to the U.S. for people from seven predominantly Muslim countries a constitutional crisis? Or the time when Trump made disparaging remarks about a federal judge who ruled against his administration? Or when Trump first fired FBI Director James Comey – and subsequently fired former FBI deputy director Andrew McCabe, just days before he was due to retire?

People have been quick to use the term “constitutional crisis” when something goes horribly wrong, but what’s the difference between any political crisis and a constitutional crisis?

Speaking on The Rachel Maddow Show, Chuck Rosenberg, former acting head of the Drug Enforcement Administration, defined the term as a constitutional question which is brought to the Supreme Court for debate and resolution.

Meanwhile, the Atlantic’s Quinta Jurecic and Benjamin Wittes believe that the term “constitutional crisis” has no fixed meaning:

It’s not a legal term of art, though lawyers and law professors – as well as political scientists and journalists – sometimes use it as though it were. Saying that something is a constitutional crisis is a little like saying that someone is going through a “nervous breakdown” – a term that does not map neatly onto any specific clinical condition, but is evocative of a certain constellation of mental-health emergencies.

Nevertheless, various experts have attempted to define the term — for example in the wake of President Bill Clinton’s impeachment.

Political scientist Keith Whittington came up with the definition that constitutional crises are “circumstances in which the constitutional order itself is failing,” although that could clearly be a matter of subjective opinion.

He went on to describe two kinds of crises: “operational crises,” which happen when constitutional rules don’t provide enough information on how to settle a political dispute; and “crises of fidelity” where the rules do provide guidance on what to do but nobody is following the rules.

Jurecic and Wittes argue that what we are seeing now is “constitutional rot,” as Trump behaves more and more like an authoritarian dictator and Congress takes no action, tolerating it all.

Expanding on Whittington’s definition, The FiveThirtyEight blog describes four types of constitutional crises:

1. The Constitution doesn’t say what to do.

The Constitution creates a national government with a legislative, executive and judicial branch, and a system of checks and balances among these three branches. It also divides power between the federal government and the states, and it protects the personal liberty of citizens from intrusions by the government.

But the Constitution is also brief and pretty vague, and various informal practices have filled in some of its gaps over the years. Issues such as succession rules and term limits have been clarified by the use of constitutional amendments.

For example, the Constitution is silent on what emergency powers the president has to respond to a crisis. 

According to FiveThirtyEight:

It’s easy to imagine that in the wake of a terrorist attack or war, Trump might enact policies that would lead Congress or the courts to challenge whether he had the authority to take those actions. That would be a constitutional crisis.

2.  The Constitution’s meaning is in question.

As noted above, the wording on the Constitution is often vague, leading to differing interpretations by experts. 

An obvious example is the Civil War: The Constitution provides plenty of information on how a state can join the union, but none on how it can leave the union. Another question on which the Constitution is silent is the issue of slavery and the federal government’s authority to control it.

Can we impeach Trump? The Constitution reads, “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” So what exactly are “high crimes and misdemeanors?

3. The Constitution tells us what to do, but it’s not politically feasible.

A case in point was the 2000 presidential election, when George W. Bush and Al Gore were separated by just a few hundred votes in Florida — the state where the electoral votes would determine who the winner was. 

There were numerous egregious actions during the recount there, but under the Constitution, Congress could have decided which candidate to recognize or Congress could have argued that neither person had achieved a majority and let the House of Representatives decide on a president.

Both solutions would have been politically unfeasible.

4.  Institutions fail.

The Constitution’s system of checks and balances is designed to set the three branches against each other and prevent tyranny. That sounds perfect, but in reality thanks to political corruption, partisan politics and various other malfeasance, things don’t always work out. 

This crisis is probably the one most likely to happen during the Trump presidency.

With varying opinions on what makes a constitutional crisis, it’s hard to say for sure whether we are on the verge of one. What is certain is that we are in a period of “constitutional rot.” Time will tell whether we can get that rot under control before it becomes a crisis.

Photo Credit: Hayes Potter/Unsplash

165 comments

Annabel Bedini
Annabel Bedini2 days ago

Dan B
I agree, enough is enough. Thanks to you for enlightening me about American society!
So I'll sign off with, as we say in Italy, buon proseguimento (meaning more or less 'good on-going').

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Dan Blossfeld
Dan Blossfeld2 days ago

Annabel B.,
Yes, socialist ideas lead to more equitable societies. I believe that is the crux of the ideology; making society better results in improved conditions for the individuals. In capitalism, it is the reverse. I think you tapped on the thought that we may have exhausted this thread, and it would be fine with me to move on. Thank you for this discussion.

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Annabel Bedini
Annabel Bedini3 days ago

Dan B
Thanks for this very clear explanation. I was going to post another thought along the lines that in the American capitalist model the state takes little or no responsibilty for the well-being of society as a whole. It's everyone for him-or her-self. Whereas the model adopted in Canada, Australia, New Zealand and Europe has incorporated a certain amount of let's call them that dreaded word 'socialist' ideas. To our mind this leads to what we could call kinder and more equitable societies. You say, and who am I to dispute it, that the American population prefers things as they are, but I do wonder if the poor and disadvantaged wouldn't be happy to be able to count on more help. And I am amused by this fear of 'oversight', I certainly don't feel my freedom of action is in any way curtailed by the government but I will think about it.

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Dan Blossfeld
Dan Blossfeld3 days ago

Annabel B.,
Yes, most Americans prefer the individual, entrepreneur system that we have. Most do not want the government safety nets with its accompanying oversight. Some call it the cowboy attitude. I understand that our mindset is different from many in Europe. There is a vocal minority (as exemplified by many posters here) that prefer the European system. Many attempts to institute many of these policies have failed, due to overwhelming resistance. I am sure that with the right policies, the government can protect use from ourselves. However, most here do not trust the government to do a better job than they can do themselves, or just plain do not want to be told what to do. Hence, we tend to exhibit both greater failures and successes. People like the limitlessness that we have.

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Annabel Bedini
Annabel Bedini3 days ago

Dan B
I'm not sure where we are going in this discussion. It began when I joined in to support Rhoberta E.'s claim that 45,000 deaths through inadequate health care in the U.S. was not acceptable. From there we went on to comparative health care systems, which brought us on to poverty and now life expectancy. I found myself disputing what seem to be your claims that all in all the American Way is preferable to any other. Whenever I produce reputable information about relative failures in the American system compared with other Western nations, your reply is 'well, maybe, BUT....' with any blame put firmly onto the poor and disadvantaged themselves for their own bad lifestyles, bad choices, bad education, bad access to adequate health care and so on. As I have said previously, while I understand your desire to protect your country from outside criticism, your approach does look like a case of unmitigated early capitalist doctrine. Is that still the way most Americans feel or are you an exception, do you think?

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Dan Blossfeld
Dan Blossfeld3 days ago

Annabel B.,
Yes, obesity is a problem. But much of the obesity problem coincides with poverty. Yes, we have more road accidents per capita, but that is strictly due to more vehicles. On a comparable driving distance, there is no statistical difference. Maternal mortality appears to not be tied closely to the healthcare industry. Analysis shows that many of the deaths are due to the obesity issue, and failure to obtain adequate medical attention. Additionally, more women opt to have a C-section (or physicians push them more), which is inherently riskier than natural childbirth. Infant mortality is more closely died to healthcare (lack thereof) and education. This has decreased significantly recently with the drop in teen pregnancies. The U.S. is only 20% higher than Canada now, and 40% higher than most of Europe.

In general, the lower life expectancy in the U.S. (~2 years) compared to Europe is mostly due to lifestyle differences.

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Annabel Bedini
Annabel Bedini4 days ago

Dan B
If you are now talking about life expectancy, my reading tells me you need to add obesity (a typically American problem) and road accidents to mostly gun-related homicide, suicide and substance abuse.

Healthcare failures would include infant and maternal mortality.

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Dan Blossfeld
Dan Blossfeld4 days ago

Annabel B.,
I do not contest that the U.S. has high income inequality. That is the result of our economic and political system. That is not a particular good measure of wealth or well-being. As I explained to Rhoberta earlier, the life expectancy has nothing to do with the healthcare system. It is simply a result of a higher homicide and suicide rate, which I will not contest either.

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Annabel Bedini
Annabel Bedini4 days ago

Dan B
Please feel free to retaliate by providing all the negative data you can find on Europe in general and Italy in particular. My contention is that we should all be able to look straight in the face at the failings of our societies if we want to have any chance of making things better.

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Dan Blossfeld
Dan Blossfeld4 days ago

Brian F.,
Now, 98% are living in poverty? That is a big jump from your previously over-inflated 50%!

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