Are we in a constitutional crisis?
In Part 1, I gave some background on our constitutional system. Now I’m going to discuss our present crisis.
So, what is a constitutional crisis? I’m going to argue that a constitutional crisis comes about whenever there is a reasonable fear that a crucial element of our constitutional system has failed or is in danger of failing. This includes primarily the system of checks and balances that distributes powers among the three branches of government and makes sure (we like to think) that no branch becomes too powerful. It might also include a major breakdown of fundamental systems prescribed by the Constitution: for example, a massive loss of faith in our election systems or in one of the major branches of government; wholesale erosion of the freedoms guaranteed in the Constitution or its amendments; a president so reckless that it triggers costly trade wars or a nuclear arms race that threatens our economy or our lives; or an all-out assault on major Constitutional concepts such as “equal protection,” or “due process of law.” The point isn’t that a president might do these things: the point is, what do the other institutions of our civil and political process do to check these abuses?
Our constitutional system has been challenged several times (the 1830s Nullification crisis, secession, the red witch-hunts of the 1920s and 1950s, southern governors’ defiance of federal authority in the civil rights era, Watergate, for starters). But the only time it failed led to a civil war that destroyed the lives of 5% of the population and created Southern redemptionism, Jim Crow, and other injustices against African Americans that are still with us today.
I think we’re very near that spot again.
First, we’ve been drifting toward a constitutional crisis since at least 1994. Symptoms before Trump included the abdication by the US Senate of any role in foreign policy, which allows us to have ongoing wars in Afghanistan, Syria, Iraq, Yemen and sub-Saharan Africa, all justified by an Authorization for the Use of Military Force (AUMF) passed nearly 20 years ago to respond to 9/11. Beyond this,
1. The Senate has utterly collapsed as “the world’s greatest deliberative body,” forfeiting any role other than obstruction in the legislative process. The filibuster was a rarely used “last resort” tool for the first 222 years of the Constitutional Republic, but for the past 10 years has been the normal way of conducting business.
2. The weaknesses of the Electoral College have been shown for all to see twice in the past five presidential elections
3. The Republican Party has staged an unprecedented 10 year project to take over the courts. To accomplish this, the GOP created a huge backlog of judicial vacancies by refusing to confirm judges through Obama’s eight years and then changed the template for selecting and vetting judges. In the past, a few cronies and political allies were appointed but the common practice was to nominate a highly qualified (as judged by the American Bar Association) who shares your general philosophical temperament. This led for years to appointment of a lot of moderates and a few “unpleasant surprises” such as Republican nominees who turned out to be “too liberal” like Sandra Day O’Connor and David Souter. The new process involves outsourcing the selection of judges to a fringe right wing group (the Federalist Society) and weaponizing the confirmation process. The result has been a shift from appointing judges the Bar Association considered to be “highly qualified” to appointing young, partisan street-fighters. As far ago as 2000, the conservative majority of the Supreme Court brought a state-prescribed recount to a halt and instead elected George Bush president.
Trump
Despite the gradual erosion of our Constitutional construct over several decades, it has gotten much worse under Trump. A few small examples:
The professional civil service has been under continuous attack, with the president repeatedly attacking non-political civil servants by name and hounding some to leave the government service.
The intelligence community, the law enforcement community, and the international systems we rely on for prosperity and stability have all been under attack since inauguration day 2017.
The president has demanded that the FBI investigate and punish his political opponents, and, it seems, is meeting with some success.
The press has been repeatedly denounced as “enemies of the people.”
These institutions that are under steady attack are all important checks on runaway presidential power. Most fundamentally, the system of checks and balances is under attack. The president has abused the authority of the national emergencies act to forward (and fund) a project that Congress had explicitly prohibited.
The administration has also adopted a policy of universal defiance of subpoenas and refusal to provide any witness or any information. This has left the Democratic chairs in the House of Representatives with little to do but set more deadlines and make appearances on MSNBC.
In most cases (refusal to release the President’s tax returns, the Attorney General’s refusal to release information or appear at hearings, etc.), the only recourse congressional Democrats have is to appeal either to the Justice Department or the Courts to enforce Congressional demands. Neither can be counted on to support these requests. The Attorney General has already stated that the president cannot be investigated and that he has the power to terminate any investigation he “knows” is unfair.
The president has created a situation where he is not only above the law – he is living in a Hobbesian lawless state of nature. Madison didn’t anticipate a president so self centered and so ignorant that he cares nothing about the Constitutional system --- at the precise time when one of the two major parties has sold its soul to this same president – and at the same time that this party has been engaged for a decade in packing the federal courts with ideological street-fighters who are likely to endorse anything the administration proposes.
Leon Reed is a retired Congressional aide and defense consultant. He is a member of the Government Accountability Task Force of the Gettysburg Democracy for America.