Are We in a Constitutional Crisis?
Jerry Nadler, the New York Representative who is the chair of the House Judiciary Committee, sure thinks so. He said last week, after the White House refused to release the full version of the Mueller report, “Certainly, it’s a constitutional crisis.” He added that the country is “in one because the president is disobeying the law, is refusing all information to Congress.”
Since he issued that statement, others have lined up behind him. On Thursday, Speaker of the House Nancy Pelosi agreed with him. She said that “this administration wants to have a constitutional crisis because they do not respect the oath of office that they take.”
And over the weekend, Senator and presidential candidate Kamala Harris jumped aboard, although with a bit of equivocation. She told CNN, “I think it is fair to say that we are looking at a crisis, not only of confidence, but potentially a constitutional crisis.”
There is no doubt that more and more Democrats are going to chime in on this question in the coming days and weeks. However, there is also little doubt that this is the wrong question. The right question, and really the only question that matters here, is what anyone is going to do about the situation, above and beyond what we’ve been doing so far (which has accomplished very little in terms of stopping the president). Because whether we are in a constitutional crisis or not is completely irrelevant if all anyone does is talk about it and no one takes any action about it.
We can debate the specifics of what is a constitutional crisis until the proverbial cows come home. Law professors and other legal experts make their money and their reputation waxing intelligent on the issue.
The reality, though, is that there is no magic definition of what is a constitutional crisis and what isn’t one. You can read the Constitution all you want and you won’t find the term mentioned there. Moreover, the term appears only twice in the history of Supreme Court majority opinions (and only three times referring to American history in non-majority opinions), and both times referred to events in American history that happened decades prior to the Court’s use of the term (the 1937 Court-packing threat and the 1832 Nullification Crisis). In other words, the Court used the term with hindsight to describe history, not to evaluate any on-going legal dispute.
What this means is that there is no significance whatsoever to using the term “constitutional crisis.” It may sound good in a television clip, but as a matter of constitutional law, it means nothing.
There is, however, something that does have constitutional meaning. And that’s the co-equal branches of government using their constitutionally defined powers to check the President when he acts in a way that goes against basic principles of American law. Congress can investigate, censure, recommend for prosecution, impeach and ultimately remove a president from office. But those are the options before we even get creative. A creative Congress can do even more, by using its power to delay, withhold the budget, hold its own trials, and much more.
Then there are the courts. The courts also play a role in checking the President, by adjudicating disputes that come before it involving him and forcing the president to comply with the law. So far, though, the Roberts Supreme Court has done very little to check the president, which is the key difference between Trump and Nixon so far.
And finally, there are the people. The people are always the final arbiters of what is and isn’t within bounds in our democracy. We in the resistance have talked a good talk, but outside the first couple of Women’s Marches and the people who descended on the airports after the first Muslim Ban was announced, we haven’t taken to the streets or engaged in any mass radical action to stop the ongoing threats. It’s just too damn easy to tweet about them instead. (I’m as guilty as the next person in this regard.)
So declaring we are in a constitutional crisis is really a non-answer to a stupid question. The real question is what we are going to do about it. And so far, the answer is not much.