What is a constitutional crisis?
This question reemerges seemingly every week in the Trump era. The president is openly disdainful of the rule of law and is now undermining Congress’s ability to exercise its lawful powers of oversight. But is it fair to say that we’ve crossed a red line?
Jerry Nadler, the Democratic chair of the House Judiciary Committee, is the latest to argue that we have. After the White House invoked executive privilege and refused to release the full, unredacted version of the Mueller report last week, Nadler told CNN that we are in a “constitutional crisis” because “the president is disobeying the law, is refusing all information to Congress.”
But, Nadler added, “I don’t like to use that phrase because it’s been used for far less dangerous situations.”
That’s one of the biggest problems with the concept of a “constitutional crisis”: It’s poorly defined. There’s no set of agreed-upon conditions, no ultimate standard that indicates when a country has officially entered into a constitutional crisis. Instead, we can only look at a country’s political system and ask whether it’s working as designed, or whether the structures and institutions that hold it together are intact.
But even then, it’s still a complicated question. The American system, for example, is built on conflict, so the line between a crisis and a confrontation is awfully blurry. So long as the people involved are still relying on constitutional mechanisms to resolve disputes, we’re likely not yet in a crisis.
To get some clarity on this, I reached out to 11 constitutional experts and asked them to step back from the latest Trump outrage and answer a more fundamental question: How do you define a constitutional crisis?
Their full responses, edited for clarity and length, are below.
Victoria Nourse, law professor, Georgetown University
We are in a separation of powers war between the president and Congress the likes of which we have never seen. A constitutional crisis is a fight among branches of government in which neither side backs down, and there is no clear resolution within the constitutional system.
There have been other wars — Richard Nixon’s Watergate; Ronald Reagan’s Iran-Contra; Bill Clinton’s impeachment. But no president in the 20th century has issued such a wholesale rebuff to Congress. Could you imagine if President Bill Clinton or Ronald Reagan had decided not to hand over documents or witnesses? Presidents and Congresses typically negotiate such matters every day in Washington.
Rebuffing a democratic norm is not a constitutional crisis, however. The separation of powers is as much a separation of popular constituencies as it is a separation of legal powers. When the country is as politically divided as it is now, large institutional clashes are predictable.
Washington’s institutions amplify the sounds emitted from state partisan gerrymandering. A president of one party facing a House in another party ensures that separate institutions will voice separate opinions This is a feature, not a bug of the system. To misquote the great political philosopher Hannah Arendt, “power” is the power to speak on behalf of others. In this war, the president is speaking for one set of people; the House for another.
A constitutional crisis will occur if one of the parties to this war refuses the third branch —the courts. The House should go to court, and quickly, to enforce its subpoenas. Although the courts are often wary of entering the political realm, in this area they are essential. Executive privilege, after all, is a judicial creation (there is not a word about it in the Constitution itself).
If the president refuses to abide by the court orders, then we will have a true constitutional crisis. All three branches will have weighed in at this point. The president takes a constitutional oath to faithfully execute the law. If he willfully rejects the law’s resolution, he will have violated his oath of office — as determined by the courts — in the most fundamental way.
Short of a new election or impeachment, though, there will be no way to resolve the matter if the president refuses to comply with a court order. Courts have no armies. The judiciary could cite him for contempt, but if his Justice Department will not prosecute (and we know that they will not), then we are at a constitutional crisis.
We will have a president who claims to be above the law, capable of thwarting the people and the courts by merely ignoring them.
Keith Whittington, politics professor, Princeton University
The rhetoric of “constitutional crisis” has become more common over the past several decades, but the term remains ill-defined. Like “judicial activism,” it often just becomes a way of saying that you really don’t like something that someone else is doing.
It is sometimes used to suggest that someone is violating the Constitution or that the meaning of the Constitution is unclear, but that seems neither helpful nor correct since addressing violations and indeterminacy are routine features of a working constitutional system. And, of course, we might be unhappy or unfamiliar with what the Constitution requires or permits in particular circumstances, but that, too, is a routine part of living in a constitutional system.
I think a constitutional crisis is best understood to be moments when the constitutional system itself seems to be breaking down. This can happen in two ways: a crisis of operation and a crisis of fidelity.
A crisis of operation occurs when important political disputes cannot be resolved within the existing constitutional framework. An effective constitution is one that provides a structure for contesting and resolving political disputes. When a constitution can no longer do that and our disputes spill outside the constitutional framework, then the constitution itself is in crisis.
A crisis of fidelity occurs when important political actors are simply unwilling to adhere to the constitutional commitments as they understand them. If consequential political actors determined that a constitutional rule or a prescribed constitutional outcome should be ignored because some other political priority than following the constitution is more important, then the Constitution’s ability to guide and constrain political behavior has, to that degree, been cast into doubt.
Jessica Silbey, law professor, Northeastern University
The federal government divides power among the legislature, the executive, and the judiciary. These divisions were intended to prevent the consolidation of governmental power in any one place in order to maximize individual liberty and the opportunities for democratic mobilization and change.
Despite these divisions, we are all under one Constitution. And that Constitution has rules, as interpreted by the Supreme Court of the United States and as amended and shaped by the people through their elected officials and direct petitions to government.
A constitutional crisis, therefore, is when one branch of government hijacks this divided system to change the rules in its favor, making the other branches subservient instead of equal and the people’s voices dim or ineffective, thus handcuffing our democracy.
This often happens in plain sight. After the Supreme Court decided Brown v. Board of Education in 1954, Arkansas Gov. Orval Faubus refused to comply with the unanimous decision and instead ordered the Arkansas National Guard to prevent black students from attending Little Rock Central High School.
President Dwight Eisenhower insisted the law be followed and sent the 101st Airborne Division of the US Army to enforce the constitutional mandate of equality and protect the black students as they went to school. This was a constitutional crisis in which the states refused to follow the Constitution, and military force, ordered by the president as commander in chief, was required to enforce the law.
In a much earlier case, Worcester v. Georgia (1832), a constitutional crisis manifested between the president and the Supreme Court. Chief Justice John Marshall ruled that American Indians were independent nations under treaty rules and could not be forced to be removed from their tribal land. In response to this decision, President Andrew Jackson allegedly said, “John Marshall has made his decision; now let him enforce it!”
The president’s job under the Constitution is to take care that the laws are faithfully executed. But President Jackson ignored the law and instead allowed the state of Georgia to remove the Cherokee from their land in what became the famous “Trail of Tears.” This constitutional crisis ended with the states and the president refusing to follow the Constitution, and the Supreme Court and Congress unable to resist their power.
All members of government swear an oath to uphold the US Constitution, which provides rules for governing as well as for debating changes to those rules. Refusing to follow these rules is one feature of a constitutional crisis. It is cheating. When state legislatures pass laws that are blatantly unconstitutional, when the president of the United States acts as if he is above the law by refusing to follow court orders (or ordering his Cabinet to refuse to follow court orders), when the Senate refuses to debate a Supreme Court nominee for fear of losing party control, a constitutional crisis exists that only the people can fix by insisting the laws be enforced.
But if the enforcers are cheating, and the rules for electing new government are constrained by the existing ruling party — constraints such as controlling [the process of counting the population via] the census or limiting access to the ballot — the people cannot solve the crisis within our democratic and constitutional norms.
This kind of constitutional crisis can lead to revolution because of the profound inequality, the constraints on liberty the consolidation of power creates, and the feeling of hopelessness both produce.
Peter Shane, law professor, Ohio State University
The purpose of a constitution is to structure legitimate government, so that the exercise of power over an entire citizenry by a relatively small handful of elected and appointed officials is morally justified.
In a democracy, that moral justification depends on several things: the protection of human rights; adherence to the rule of law; structures and practices that help assure, in public policymaking, genuine consideration for the interests of everyone who is subject to the government’s authority; and opportunities for all citizens to participate as meaningful political actors in the processes of collective self-determination.
I define a constitutional crisis as a situation in which existing constitutional arrangements no longer realistically promise to serve the foundational values of democratic constitutionalism.
Under Trump, the GOP has been pressing hard against all the values I have named, and it remains unclear whether our institutions are sufficiently resilient to withstand the onslaught. Whether we have yet gone from “yellow alert” to “red alert” is uncertain, but Trump’s attacks on the free press, courts, and law enforcement institutions, his stonewalling of Congress, his gleeful pledges to direct government assistance to those who support him but not to those who do not — all this is unprecedented in degree, if not always in kind.
A 19th-century British prime minister once said, “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” Our current president shows no such self-restraint, and neither Congress nor the Supreme Court has yet shown itself able to fully check his authoritarian impulses.
Mark Tushnet, law professor, Harvard University
What’s a constitutional crisis? It’s not a severe and persistent conflict within the national government. That kind of conflict can precede a change in the previously established relations within the government — Congress gaining more power than the president, or the reverse. (Sometimes, of course, even that kind of conflict sputters out and nothing changes.)
As long as the new set of relations is broadly democratic, we will have experienced a change but not crisis. Think here of the transition that led to the New Deal or the Reagan Revolution.
When these kinds of conflicts occur, many of us are likely to hold rather strong views about what democracy “really” means, and are likely to think that one or another participant in the conflicts is anti-democratic (according to our own beliefs). We should be generous here, and recognize that the domain of democracy covers quite a wide range of possibilities.
A constitutional crisis, in my view, would occur when the institutions in place are unable to ensure that the outcome of persistent conflicts will remain within broadly democratic lines. And, unfortunately, we can’t tell whether that’s the case until we see how the conflicts play out — usually over a reasonably extended period of time.
That means that we should find severe and persistent conflicts worrisome and should encourage everyone to take a deep breath and think about ways to resolve the conflicts to preserve democracy as broadly understood.
But, again, severe and persistent conflicts do not a constitutional crisis make.
Alice Ristroph, law professor, Brooklyn Law School
Declarations of crisis are so common, and so contested, that I don’t know if the term is useful. I’m thinking not just of constitutional crisis but also of other areas of law and policy, such as the “criminal justice crisis.”
We may indeed face great problems with regard to both criminal law and constitutional democracy. I believe we do face such problems — but we’ve lived with these problems for a long time. Sometimes, using the language of crisis is a way of denying the historical longevity of certain problems.
That raises the question: Can a crisis be permanent? I think that “crisis” would be a more useful term if we used it more along the lines that it’s used in medicine. I have no medical expertise myself, but I believe that medical professionals use the term “crisis” to refer to a specific event that’s a turning point for a patient. A crisis lasts a finite period, and afterward, the patient is either better or worse, but not the same as she was before the crisis.
With regard to the many constitutional disputes and confrontations we are seeing day to day, we could ask: Is this dispute or confrontation unprecedented, or is it similar to disputes that we’ve seen regularly? And will this supposed crisis come to an end soon, leaving us much better off or much worse?
Of course, the answers to those questions will themselves be deeply contested. But I think asking those questions could improve our understanding of the supposed crisis.
Sanford Levinson, co-author of Democracy and Dysfunction and law professor, UT Austin
Is there a “constitutional crisis”? We have to define the term before we can discuss its absence or presence.
First, one might perceive a crisis if those with official power openly declare their intention to violate the law. James Madison suggested one possible scenario in Federalist 41: “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power” (emphasis added). From this perspective, too-rigid limits on official action builds within it the “necessary usurpations” required to respond adequately to some great national challenge.
This suggests the second criterion: legalistic adherence to “constitutional barriers” even if we accurately recognize that such adherence poses significant threats. Perhaps it makes sense to say “let justice be done though the heavens fall.” But why would we say “let the Constitution, in every respect, be observed though the heavens fall.”
Neither of these conditions is obviously present as we speak. No one in the Trump administration is publicly claiming the right simply to ignore the Constitution, though there are moments when they appear to feel hemmed in by constitutional constraints. One might reduce the current situation to an old-fashioned episode of dueling interpretations of a Constitution that in certain respects is notoriously unclear, including the meaning assigned to the judicially created notion of “executive privilege.”
I am prone to arguing that Congress has acquiesced in the creation of a de facto “constitutional dictatorship” by virtue of its delegation of powers to the executive, seen most clearly at present with regard to the trade war against China. But there is no serious argument that President Donald Trump is “usurping” powers.
A third possible criterion is public unhappiness about the positions taken by one side or another in a constitutional dispute that manifests as demonstrations or episodes of violence — such as the original Tea Party, or the acts of civil disobedience attached to the civil rights movement. But here, too, we don’t see anything today that could truly be described as direct action that is potentially disrupting everyday life.
So given all these conditions, I wouldn’t say that we’re in a constitutional crisis. But I would add two caveats. First, one must address the extent to which the Constitution itself works to generate what laypeople and pundits might plausibly call “crises” precisely because a contemporary president can find lawyers who can argue (in more or less good faith) for remarkably expansive and dangerous conceptions of presidential authority.
Secondly, legal academics refuse to take seriously the possibility that Donald Trump himself constitutes a genuine crisis not simply because of some of his political positions, but rather because he is manifestly unfit to be president of the United States.
Hamilton, in Federalist 68, assured his readers that the Electoral College would serve as a way of preventing any manifestly unsuitable person from being elected. Those assurances have turned out to be totally false. From his perspective, the Electoral College (in addition to its other deficiencies) has become simply a mode of mob rule. That might suggest another kind of crisis, but that’s a separate conversation.
Aziz Huq, law professor, University of Chicago
The concept of a constitutional crisis is not necessarily a pertinent one in our present circumstances. “Crisis” connotes a sharply defined moment of conflict, in this case over the content of constitutional norms.
But the experience of other backsliding countries, as Tom Ginsburg and I have demonstrated in our book How to Save a Constitutional Democracy, is not one of a sequence of “crises.” It is rather a process of slow erosion, often through piecemeal institutional and personnel changes. Far more important than any ”crisis” over a specific subpoena is thus the long-term erosion of Congress’s oversight powers.
Also important is the ongoing constitutional attack on independent institutions of accountability, such as the independent counsel and the special counsel, under the rubric of “the unitary executive.” It is these long-term trends that are in fact setting the pace for constitutional democracy’s decline in the United States.
Of course, specific events can crystallize awareness of these trends, but that’s not the same thing as the events being determinative on their own ground.
Tom Ginsburg, law professor, University of Chicago
A constitutional crisis is a fight among branches of government in which neither side backs down, and there is no clear resolution within the constitutional system. Crises are dangerous because they tempt players to engage in extraconstitutional action to get their way.
Suppose, for example, that an American president was impeached but refused to leave the White House on the grounds that the Senate trial was not conducted properly. In this example, the crisis might be resolved by the imposition of force — say, the Capitol Police showing up to arrest the president, or the president using his power as commander in chief to order the US Army to protect him. Whatever side would ultimately triumph would be dictated by force, not by law in any direct way.
The situation in Venezuela today is a good example of a constitutional crisis. The 2018 reelection of President Nicolás Maduro was disputed, and the National Assembly [the country’s legislative branch] declared that the presidency should be filled in an interim way by the assembly’s leader, Juan Guaidó.
Maduro’s handpicked Supreme Court, however, ruled the National Assembly declaration unconstitutional and confirmed Maduro as president. Both sides have relied on different constitutional articles to justify their positions, and international actors are divided on which government to support.
A crisis is different from a mere confrontation or disagreement about powers. Take the current fight about investigative authority in the United States: Clearly, both the president and the House of Representatives disagree about the scope of congressional authority. But they have not exhausted the constitutional means of resolving the fight. Congress can use its spending power, or try to enforce any contempt orders it issues; any presidential invocation of executive privilege still needs to be adjudicated.
So there have been lots of constitutional confrontations in the United States, but we have had very few constitutional crises.
Ilya Somin, law professor, George Mason University
What counts as a constitutional crisis? Perhaps, as with pornography, the answer is that we know it when we see it. But maybe we can do better. Political scientist Keith Whittington usefully distinguishes between ”crises of fidelity” and “operational crises.”
In a crisis of fidelity, powerful political actors systematically violate the Constitution, and do it with impunity. A famous historical example is the way in which state governments for decades got away with egregiously violating constitutional restrictions on racial discrimination after the collapse of Reconstruction.
An operational crisis arises when the existing constitutional rules fail to handle some major challenge facing the nation. Whittington focuses on cases where the system fails to resolve major political disagreements. But an operational crisis can also occur if the system fails to deal with some major danger, whether or not the failure is caused by political conflict. In the years before the Civil War, for example, the system failed to effectively address the monstrous injustice of slavery and the political conflict it generated.
Not every violation of the Constitution qualifies as a crisis of fidelity. Otherwise, we would always be in one, since there has never been perfect compliance. A crisis arises only when there are major, systematic breaches. Similarly, not every policy failure counts as an operational crisis. It has to be a major challenge that the existing system seems chronically incapable of addressing.
Another type of potential constitutional crisis arises when there is major disagreement over whether the Constitution has been seriously violated or not — what Sanford Levinson and Jack Balkin call a “type three” crisis. In periods of severe polarization, like our own, there are often deep divisions about the meaning of the Constitution.
Such conflict can escalate to a crisis of its own if political leaders on one side adopt major policies they consider legitimate while opponents view them as serious violations of the Constitution. Such a conflict can potentially be resolved by the courts. But that remedy can fail if the issue is not one that can be resolved in court, or if the judicial decision’s own legitimacy is called into serious question.
Even if we avoid crises in the near future, we should also be alert to the threat of more gradual degradation of constitutional rules. Both left and right now claim their opponents are contributing to such rot. And both may have a point.
Diane Marie Amann, law professor, University of Georgia
The Constitution of the United States was born of crisis — of a casting-off of authoritarian bonds with no clear vision of what would replace them. It is the product of a moment when Americans dared to promise equality in an unequal world, to prescribe government by the rule of law rather than the whim of one man.
This 230-year experiment at times has been beset by crises — by moments when events tore at the fabric of the Constitution’s promise and prescriptions. The abolition of enslavement posed one crisis, the expansion of enfranchisement, another; both efforts are works in progress, as persons of color, women, and others continue to struggle, despite setbacks, for their due place in the American polity.
On sundry occasions in US history, the president has defied a check that a co-equal branch of the federal government has sought to place on him (to date, the president has always been a man). Such defiance, alone, is confrontation. But confrontation soon will escalate to crisis if the legislative or judicial branch abdicates its duty fully to check unwarranted executive behavior.
In a succinct statement of the issue, my former boss, Supreme Court Justice John Paul Stevens, recently told the Wall Street Journal: “The president is exercising powers that do not really belong to him. I mean, he has to comply with subpoenas and things like that.” If the president does not, and if no other branch checks his defiance, that, indeed, will be a constitutional crisis.