It’s a Constitutional Contest, Not A Crisis

This week in Trumplandia, the hue and cry of “Constitutional crisis” got significantly louder. I touched on this in last week’s column, but it deserves further examination. At first, it was primarily left-leaning scholars, journalists and politicians. You can find the various legal arguments for why in this week’s New York Times article, “Trump’s Actions Have Created a Constitutional Crisis, Scholars Say.” The dean of UC Berkeley law school, Edwin Chemerinsky, lists the various executive actions, including efforts to end birthright citizenship, shuttering USAID seemingly overnight, firing the heads of independent agencies, and canceling federal grants and spending authorized by Congress. Though many of these moves have been temporarily blocked by judicial injunctions, that has in no way quieted the storm.

That, in turn, triggered a counterreaction, epitomized by the White House press secretary’s statement following an unusual Trump-Elon Musk dual press conference in the Oval Office: “The real constitutional crisis is taking place within our judicial branch, where district court judges and liberal districts across the country are abusing their power to unilaterally block President Trump's basic executive authority.” Vice President J.D. Vance echoed these sentiments in various social media posts, as did Musk and Trump, all of whom suggested that there should be consequences for judges who thwart the executive branch—whether impeachment, or perhaps more ominously, something unspecified.

And yet, we are not in a crisis, if by “crisis” we mean a point of breakage or some collapse of the connective structure that undergirds the federal government and how the United States functions as a polity. We are at the point of a serious contest for sure. We are at a moment where the executive branch of government is attempting to exert a level of authority it has not wielded since the constraints placed on it in the 1970s. That is not a crisis, however upending or unsettling it may be.

Words matter here. The point of invoking a Constitutional crisis is to raise the rhetorical temperature in order to mobilize action. It is also an incendiary phrase for most Americans, evoking dark memories of the Civil War and the violent end of Jim Crow and various other moments when it seemed that the Constitution and hence the country might not quite survive.

Yet what the Trump White House is attempting to do—and what Elon Musk has become the poster child for—is assert the president’s power over the executive branch. Given how powerful the president is perceived to be, it may seem odd that even more power is either needed or could be wielded. But all the talk in recent decades of “the imperial presidency” overlooks the extraordinary constraints on the actual use of presidential power.

I have vacillated on this over the years, and in 2016, I wrote that one reason so many feared a Trump presidency was the many ways in which the Obama White House had found nooks and crannies in various laws to wield executive power in the face of congressional inaction. And without question, the president, as commander in chief of the armed forces, has since the Vietnam War been able to act unilaterally, without real constraints—except for reputation and the strong aversion of Americans to the loss of American lives.

Read what I wrote in 2016 HERE.

In its first month, the Trump administration is forcing the issue to a resolution. Congress and the executive branch have been tussling for decades. So have the courts and the executive branch. Trump and Vance sniping at “unfair” judges is mild compared to what Franklin Roosevelt said about the Court in the heat of his anger and frustration over swaths of the New Deal being struck down. In March of 1937, FDR railed against the Court for thwarting the will of the people and violating the Constitution. “We have,” he said, “therefore, reached the point as a nation where we must take action to save the Constitution from the Court.” He then proposed radical reforms to the number of justices and their tenure. His court-packing plan ultimately failed, but how’s that for a constitutional crisis?

Yet, when it is FDR and quaint history, we seem to have some equanimity. When it’s real-life, here and now, we seem hysterical.

Many of the guardrails against executive power were erected in the 1970s, including the Impoundment Control Act of 1974, which was part of a broader law that also created the Congressional Budget Office. Given the uproar now over the Trump administration halting of certain spending, it’s rather startling that the act does allow for a process of the president to freeze spending for 45 days after formally notifying Congress. We are well within that window, though it isn’t clear whether the White House has adhered to proper procedure. And it is quite clear that this presidency wants the courts to reassess the validity of the act, though there is little reason to think even this Court is inclined to overturn it (though who knows).

Other exercises of presidential power contravene decades of practice, but it is unclear whether they violate the law. That includes the mass firing of unionized federal employees and the rather draconian and sudden cancellation of contracts and grants that have already been authorized. You’d think that the federal government would be held to similar standards of contract law in that it couldn’t just cancel a grant or contract without due recompense, but then again, there is much that the government allows itself to do that that individuals or corporations would never be permitted to.

A glance at the past hundred years makes clear that, at multiple points, one branch of government or another has attempted to wrest power from another. Whether it was the Court relative to Congress and the executive in the 1930s, the executive branch expanding its foreign policy role during and after World War II, Congress reclaiming authority in the 1970s after Watergate, or the executive branch asserting itself again in the early weeks of 2025, the struggle for dominance is nothing new. The growth of the administrative state over the past 50–60 years has been dramatic. Yes, some of it began with the New Deal, but the size and scope of the federal government mushroomed during the Great Society of the 1960s and has continued morphing ever since.

The idea that, once created, no government agency should ever be wound down is one of the more troubling features of the modern state. Shuttering anything is never easy for humans, but the seeming permanence of government institutions should not be accepted as a law of nature. Some degree of regular review, asking “is this really necessary?” would be a positive feature. An “office of administrative review”, perhaps. That would, of course, be far more measured and deliberate than the “shoot now, ask questions later” approach of Musk and the Trump administration. It would also consider trade-offs, seeking to eliminate programs, departments, and agencies in a balanced way—doing the least amount of harm for the most amount of good. But the net result would be to acknowledge that just because some part of government exists doesn’t mean it should continue to.

Personally, I would prefer a more constrained executive, an independent Justice Department, less powerful prosecutors, and fewer laws and regulations. Others clearly want a more vigorous executive branch, a weaker Congress, and a compliant judiciary. In fact, there is wide and pervasive disagreement over the right balance and formula, and the Constitution only provides broad brushstrokes.

Lost in this current hysteria is that few of us would argue that the federal government functions optimally or even well. Few would say it is responsive in a timely and efficient manner. Defending a sclerotic system that represents trillions of dollars simply because those currently trying to shake it up are brutal and destructive in their methods is the wrong tactic. It may be politically expedient, but if successful, it will only further entrench the very things we need to reform. Challenge the mores of the Trump administration and its methods if that is your position. Support the administration’s ends if that is yours, and find ways to win the legal battles. But this contest isn’t new, and its outcomes don’t spell the end of the constitutional order. It may lead to a different balance of power between the branches, as that balance has continually shifted over time. Or this fight may simply leave us all exhausted and weaker, without any meaningful change or systemic shifts.

The best outcome of all this would be a better government. If everyone could stop shouting, and if the Trump team could pause long enough to build some consensus rather than taking a sledgehammer to everything, that might actually be achievable. Doesn’t seem likely, but it’s worth keeping in mind.