What is it? Are we in one? Let’s find out
We’re just a few months into Donald Trump’s presidency and many in the media and American public have been comparing the current administration’s rocky start to the fraught final months that ended with Richard Nixon’s resignation in 1974.
Since taking office, Trump fired and replaced an acting attorney general, bashed a U.S. district judge’s decision to temporarily halt his “travel ban,” and has seen the resignation of a national security adviser over ties to Russia. Because of this, many have speculated whether or not the U.S. is moving toward a “constitutional crisis” in the coming months or years.
So what exactly is a constitutional crisis?
A constitutional crisis would be when one branch of government is not acting constitutionally and no checks seem to be operating on that branch. Political and legal observers typically divide constitutional crises into four categories.
The first type of crisis is one where the Constitution does not say what to do. In this case, informal precedents and practices have filled in the gaps of the Constitution’s vague language. This kind of crisis can happen with a president’s power during a time of war or emergency. The constitution does not specify what powers a president has during these times. One instance is when President Harry Truman attempted to seize steel mills during the Korean War to prevent a strike that would interrupt steel production. The seizure angered steel companies, which claimed that the seizure was illegal, something the Supreme Court agreed with.
Trump has talked a lot about terrorism. If a terrorist attack were to happen during his presidency, he could enact policies that would lead Congress and the Supreme Court to challenge his decisions. That would result in a constitutional crisis.
The second type of crisis is when the Constitution’s meaning is in question. In this crisis, a situation could arise where the Constitution allows for multiple interpretations, making it very difficult to address a pressing problem. The best example of this type of crisis is the Civil War, when the nation fought over unsettled constitutional questions about slavery and the government’s right to control it, as the Constitution was rather silent on this subject. To solve this question, it took a war. Another example of this would be executive overreach, such as when Andrew Jackson tried to take down the Second Bank of the United States.
It’s hard to think of a scenario for how this could happen during a Trump presidency because of how short a time he has been in office. The main controversies circling his administration are about the substance of his actions, not executive overreach. If executive overreach were to happen, then a constitutional crisis would arise, but that could easily be solved by impeachment. Unless, of course, the president was to refuse to leave office.
The third type of crisis is when the constitution does say what to do, but it is not politically feasible. Normally this happens when elections produce contested or confusing results. The most recent example of this would be the aftermath of the presidential election in 2000 between George W. Bush and Al Gore. The election was ultimately decided by a few hundred votes in Florida, and it was contested for weeks because of recounts and various other irregularities. This resulted in the Supreme Court stepping in and cutting the recount short, ending the long dispute in Bush’s favor. This kind of crisis is very much out of the question, at least until 2020.
The fourth and final type of crisis is when political institutions themselves fail. The greatest purpose of the Constitution is to create a system of checks and balances that prevents tyranny from arising. If this system were to fail, then the U.S. would definitely be in a constitutional crisis. This type is the most probable under the Trump administration if the president continues down the path of straining democratic norms and pushing political boundaries by ignoring the other branches. However, this is not the same as the president tweeting in all caps “SEE YOU IN COURT.”
So are we entering a constitutional crisis?
Well, no. While what is happening under the current administration can be seen as a crisis, it is a political one, not a constitutional one.
Genuine constitutional crises are rare, as the Constitution is very much designed to prevent one branch or individual from wielding absolute power by creating a system of checks and balances between the branches. Serious crises emerge when the institutions of government are rendered ineffective, and usually this happens because of partisan gridlock more than the institutions themselves.