:format(webp)/cdn.vox-cdn.com/uploads/chorus_image/image/54738769/shutterstock_296793953.0.jpg)
In early February — after courts began acting to block President Donald Trump’s travel ban on certain Muslim countries and customs officials on the grounds were slow to obey — I asked eight constitutional law experts whether or not the US was in a constitutional crisis.
Unanimously, they said we were not.
Three months later, Trump fired FBI Director James Comey, right after Comey requested more resources to investigate Trump’s campaign’s ties to Russia, prompting ACLU national legal director David Cole to declare to Politico that this was, indeed, a genuine constitutional crisis. So I went back to the same experts I talked to in February and asked them again, plus a few others — and while no one was willing to use the precise phrase “constitutional crisis” to describe the present situation, most were still very concerned about what has happened.
Even if we’re not yet in a full-fledged constitutional crisis, we could potentially escalate into one, and a situation doesn’t have to be a “constitutional crisis” to be extremely troubling. Moreover, one reason we’re likely not in a crisis is that crises typically result from conflicts between Congress and the executive — and the Republican leadership in Congress is not putting up much of a fight against Trump now.
"I think we are in fact edging closer to a constitutional crisis, especially if you assume, as many do, that the administration's stated reasons for firing Comey are pretexts," Stephen Griffin, a law professor at Tulane who's written on the concept of constitutional crises, told me.
Trump’s actions and “the institutional chaos they cause,” Griffin continued, “are creating the sort of fundamental uncertainty that I see as the true precursor to all of our constitutional crises. They all happen when a branch or level of government (the states in the case of the Civil War) push too far against the accepted constitutional order."
What is a constitutional crisis?
:format(webp):no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/7967507/at0042b.1s.jpg)
There are two major papers in the American constitutional law literature on the concept of a “constitutional crisis.” The first, from Princeton political scientist Keith Whittington, was written in the wake of the impeachment of President Bill Clinton and the contested 2000 election, both of which provoked fears that the US was either in, or barely avoided, a constitutional crisis. Whittington argued that neither came close to qualifying.
"Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions," he wrote. That didn't happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).
So what would qualify? Whittington divided constitutional crises into two categories: operational crises and fidelity crises.
Operational crises occur "when important political disputes cannot be resolved within the existing constitutional framework.” The Constitution itself fails, and allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.
The secession crisis of 1860 that culminated in the Civil War was, Whittington argues, both an operational and a fidelity crisis. It was a fidelity crisis because some political actors — namely the seceding Southern states — refused to obey the dictates of the Constitution and explicitly rejected its power over them. But it was an operational crisis too, because "the text of the Constitution was silent on the question of secession, and it provided no clear mechanism for resolving the contested question of whether and how states could secede from the Union."
Whittington told me via email that he doesn’t think Trump’s firing of Comey rises to the level of “constitutional crisis.” "I think we are generally much too quick to call something a constitutional crisis that is really just unexpected, unconventional, or impolitic," he says. "Those who have been calling this some kind of ‘coup’ are being irresponsible. That's beyond hyperbole; it is unserious and dangerous.”
At the same time, Whittington stresses, "both Congress and the White House have a responsibility to follow the FBI director's removal with reasonable steps to maintain the integrity of the Department of Justice and the federal judicial system. The crisis, if it comes, will not be because of Comey's removal, but because of how the system responds to Comey's removal."
Another widely cited article, by Yale’s Jack Balkin and UT Austin's Sanford Levinson, adds a third definition: When two or more political actors each strongly believe the other is violating the Constitution or constitutional norms.
In fidelity crises, it’s clear that only one side is violating the Constitution. In operational crises, it’s clear both sides are obeying the Constitution. In type three power struggle crises (“power struggle” is my term, not theirs, but it’s clearer than “type three”), each side has a real argument that it’s obeying and the other isn’t.
Balkin and Levinson offer a number of examples of power struggle crises, including the Nullification Crisis (in which South Carolina claimed it had the constitutional right to not enforce a federal tariff, Andrew Jackson claimed it didn't, and each had arguments for why they were right), the conflict between Andrew Johnson and Congress over each one's role in Reconstruction, and the Little Rock Crisis in 1957 between the government of Arkansas and the Eisenhower administration.
But neither thinks that the Comey firing counts, since there’s absolutely no dispute over Trump’s legal authority to remove Comey from his position. “This is not (yet) a constitutional crisis, since there’s no doubt about his authority to fire Comey,” Levinson told Politico. “It would be far closer to a constitutional crisis if Sessions overtly intervened in the investigation or tried to shut it down.” In an email to me, Balkin agreed: “If Comey's firing has precipitated a crisis, it would be a political crisis, not a constitutional crisis.”
Aníbal Pérez-Liñán, a comparative political scientist at the University of Pittsburgh who studies presidential democracies in Latin America and constitutional crises by them, agrees.
“This could potentially escalate into a constitutional crisis if Congress decides that this situation requires an independent investigation and enters a conflict with the executive,” he says. But the conflict so far is within the executive branch entirely. “So far what we have is a somewhat abusive use of executive authority within the realm of, well, executive authority.”
Alice Ristroph, a law professor and political theorist at Seton Hall who has written about constitutional crises, notes that the word “constitutional” in “constitutional crisis” is sometimes used rather vaguely.
“I hear ‘constitutional’ and I think of the particular document, the federal constitution, and the specific principles and doctrines that have been derived from that document,” she explains. “I think some people use ‘constitutional’ to mean ‘having to do with the basic structure of our government or fundamental political principles,’ or something close to that, without any specific reference to the written constitution. … I don’t see Comey’s dismissal as itself a grave threat to our political system, but I do understand why, in context, this latest presidential action augments the sense of crisis.”
Something can be unethical, illegal, and anti-democratic — but not a constitutional crisis
:format(webp):no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/8501105/681579098.jpg)
Eric Posner, a law professor at the University of Chicago who has written about “constitutional showdowns,” agrees that the Comey firing doesn’t rise to the point of crisis. But he largely frames the issue in terms of Congress’s response to the White House. Crises emerge when there are difficult-to-resolve disputes between branches of government. But Republican leadership in Congress is so far sticking by Trump, not supporting calls for an independent prosecutor, and generally not confronting the administration.
“If Congress became so suspicious that it refused to confirm his appointees and consider his budget and all that stuff, then we would have a crisis,” Posner says. But that’s not happening, and we’re nowhere close to that as long as Republicans still control Congress: “The Constitution was designed without any thought to the possibility of a party system … If you had divided government, it would be much easier to have an aggressive investigation which would probably do a lot of good. We don’t have that at this stage, and that is a real problem.”
Posner is quick to note that moderate Republicans could still turn on Trump at a future date, just as Republicans did in 1973-74 as the Watergate scandal mounted and President Nixon’s credibility eroded. But those events haven’t transpired yet.
Aziz Huq, also at University of Chicago Law School, thinks wondering if this is a “constitutional crisis” is asking the wrong question. For one thing, even actions that do not implicate the Constitution can be illegal in a more mundane sense.
“If the purpose of the firing was to obstruct an ongoing investigation, if that was the purpose in mind, that’s unlawful,” Huq notes. “There’s a federal statute that bars the obstruction of justice and there’s no exception for high level officials.” That’d be a high bar to prove — maybe, as Huq puts it, Trump wasn’t consciously trying to obstruct justice but was “annoyed that Comey wasn’t toeing the party line that Russia is no big thing,” which would be very unethical but arguably not illegal — but it’s certainly possible.
More importantly, though, actions can be legal and constitutional and non-crisis-precipitating and still very, very bad. “The frame of ‘Constitution crisis’ makes you ask about legality or constitutionality and it pushes you to say that if it’s legal, there’s no crisis,” Huq explains. “Even if an action is lawful, it can still wreak considerable damage on the rule of law in a democracy, by incentivizing more wrongdoing by actors who know there is no effective investigative mechanism in place, and by undermining public confidence in the rule of law and the stability and even-handedness of public institutions.”
You can also view the Comey firing as a dangerous form of democratic backsliding — just as scholars of authoritarianism told my colleague Zack Beauchamp it was. “In many of the contexts we look at comparatively, firing people from watchdog institutions and stocking those institutions with party loyalists is an early sign of backsliding,” Huq says. “It’s part of the backsliding and it enables subsequent backsliding.”
This kind of backsliding isn’t new to American government. As the political scientist Robert Mickey notes, most of the South was under one-party authoritarian rule until the 1940 to 1970s; the segregationist branch of the Democratic Party had total control, and used violence, intimidation, and legal measures to solidify its power.
At the federal level, J. Edgar Hoover used his authority as FBI director to try to sabotage the antiwar and civil rights movements, with lasting negative consequences for American democracy. President Nixon had subordinates break the law to punish and collect information on his political enemies. Those were moments of democratic backsliding too, even if the backsliding didn’t culminate in a full-on national reversion to authoritarian rule.
“You can look back at these instances and say that there were real losses to democracy, that were unevenly felt by different people and different groups,” Huq says. And ominously, some of the checks that existed then may not be present now: “The constellation of forces that eventually forced out Hoover does not exist today. There is not a hostile Congress with Trump as there was with Nixon.”
The experts I talked to declined to characterize the firing of Comey as a constitutional crisis. But that doesn’t make it innocuous. Indeed, you can think it’s not a constitutional crisis per se, but still a real and dangerous erosion of democratic norms and institutions.
