A number of scandals surrounding the White House seem to be coming to a head right as President Donald Trump prepares to deliver his first State of the Union address. Yesterday, notably, the State Department announced that it would not be imposing sanctions on Russia, despite a sanctions measure passed overwhelmingly by Congress last year. Sen. Claire McCaskill (D-MO), among others, has announced that we are in a constitutional crisis as a result. Is this right?
There’s unfortunately no easy way to answer this question. Last year, Julia Azari and I wrote a post outlining what we saw as four main types of constitutional crises. These involved instances where 1) the Constitution was silent, 2) the Constitution was hopelessly vague, 3) the Constitution’s intent was clear but politically infeasible, and 4) institutions simply fail. Trump’s failure to enforce the expressed will of the law would seem to fall into category 4 — one branch of the federal government is defying another and running afoul of the law.
Yet that’s not the whole story. Yes, Congress’s intent was unusually clear with this law — to punish Russia for meddling in the 2016 American elections. Yet Congress wrote into the law a provision granting the president discretion in its enforcement. The president may waive sanctions if he determines that it is in the United States’ national security interests to do so. And, indeed, the State Department offered such a justification yesterday.
So Trump isn’t breaking the law by declining to enforce sanctions against Russia. He’s within his rights to do so. But this raises a further question: Can we be in a constitutional crisis even if no one has broken the law?
The answer is almost certainly yes. From what we can glean, Russia meddled with the election with the intent of helping Trump, or at the very least hurting Hillary Clinton. Trump himself publicly called for Russia’s assistance in discrediting Clinton during the campaign. A host of reporting suggests that Trump has longstanding business and personal ties to Russia’s leadership. His actions to shield Russia from American sanctions gives the appearance that he is protecting a foreign government to repay it for its help in electing him, and possibly to curry future favor with them.
The appearance of the American president having loyalty to a foreign adversary is dangerous and constitutes a form of crisis. Does this rise to the level of constitutional crisis? Not necessarily. After all, the political system has remedies for such situations. Investigations by Congress and the Justice Department can bring such problems to light, and, if the president is found to be compromised, he can be removed from office. All of this is consistent with the Constitution.
The problem comes back to the third type of constitutional crisis: What if the remedy is clear but the relevant people in government choose not to do their jobs for political purposes? That is, what if evidence makes it clear that Trump maintains loyalties to Russia to the detriment of the United States, but members of Congress fail to punish or remove him simply because his party controls that branch?
This is indeed a form of crisis, and it’s one we’ve been in pretty much since Trump took office. It may well be that the only remedy to it is an election that places a different party in charge of Congress. That should hardly be satisfactory; the Constitution makes no mention of parties, and it shouldn’t have to rely on split control of government for it to function properly.
Increasingly, however, as polarization increases, split control of government seems to be the only thing that would keep the government out of a crisis. Unfortunately, that likely just creates another kind of crisis — gridlock — in which the government can’t fulfill many of its functions because each party would rather see the government grind to a halt than see the other party achieve its policy goals.
One thing that can help mitigate the government careening between different types of constitutional crises is a president who is both strong and flexible. Indeed, the Constitution’s “take care” clause imbues the president with the responsibility to keep the government operating and faithfully execute its laws. Previous presidents have certainly pushed the edges of this, but they’ve generally worked to keep the government functioning and away from constitutional crises. As Trump has proven repeatedly, he either likes a government in crisis or is utterly indifferent to it.
(h/t Julia Azari)