A Constitutional Crisis

For the past several months, the panic term du jour in use by politicians and the media has been constitutional crisis. Politicians often go over-the-top in their rhetoric to convince us we are in such dire straights that we are compelled to change the leadership. Proclaiming a “constitutional crisis” seems to impart a kind of patriotic imperative to pursuing a corrective course of action. It’s as if this is the mother of all crises, and any other type of crisis is somehow “pedestrian” in comparison. We should be concerned and afraid, mostly because we don’t understand what it means (all we’re required to know is that it’s really bad).

Wikipedia defines a constitutional crisis this way – “a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve”. This is as good a definition as any. Our fundamental governing principle is the Constitution. The language of our Constitution has been amended 27 times since it was originally written and benefits from hundreds of Supreme Court interpretations of both the original language and the amendments. There is still the possibility today of a conflict in the function of our government that has no guiding principle to draw from. However, 200+ years of legal precedent derived from the Constitution and its amendments makes that likelihood extremely small.

In our opinion, there has only ever been one constitutional crisis in this country, the Civil War. In 1860, believing they had the fundamental right to do so, South Carolina declared themselves “seceded” from the United States. Ten other southern states eventually followed suit and formed a new national government called the Confederate States of America. The underlying reason for their action was anticipated legislation coming from the Lincoln administration to limit or eliminate slavery. While it had been threatened before, no state had ever declared itself “seceded” from the Union up to that point in US history (thus there was no legal precedent). The Constitution does not have any direct language or guidance on the subject of secession.¹ South Carolina then went further and declared that federal military forts within their state boundaries automatically became their property as a result of secession. Lincoln held that the forts still belonged to the US. This was the constitutional crisis point as there was no fundamental governing law to resolve these conflicting claims. When the US Navy tried to resupply Fort Sumter in Charleston harbor, the shooting started. 500,000 people died in the ensuing conflict before it was finally resolved four years later. No other true constitutional crisis in the US has occurred before or since.

One clue that no Trump-era policies or actions constitute a true constitutional crisis is that dilemmas inflated to the status of “crises” come and go and are resolved through normal legislative or judicial processes. Collusion with Russia, government shutdowns, refugee travel restrictions, border wall funding – all initially described by politicians and the media as constitutional crises – have now been resolved or are proceeding to resolution via existing law, precedent, or judicial review. The term constitutional crisis is now so overused it has lost some its punch, giving rise to ever more dramatic claims of imminent catastrophe in order to maintain the hysteria. The latest “crisis” claim by the Speaker of the House is that the President is mentally unfit for office because he “stormed out” of a meeting.

While Democrats are making claims of constitutional crises resulting from the actions of President Trump, Republicans are also claiming a constitutional crisis in reference to the actions of Obama-era intelligence officials “spying” on the Trump campaign before and after the 2016 election. If proven to be true, the misuse of the US intelligence system for partisan political purposes would be the most serious breach of government power in our lifetime. But even that would not qualify as a constitutional crisis. There are existing laws derived from language in the Constitution that govern such an abuse of power and dictate what the penalties would be. A Justice Department investigation is now underway to determine if any abuse occurred and if so, who participated. This crime, if committed, would be both egregious and unprecedented, but with a clear legal/Constitutional path for resolution – no crisis.

A few have become so convinced (deluded?) that President Trump is the cause of a continuing crisis, they have taken it upon themselves to singlehandedly resolve the problem. Former FBI director James Comey is a case in point. In defense of his alleged illegal leaking of classified information (which led to his firing) Comey proclaimed himself to be acting for the greater good of the country. He later memorialized this rationale in a book whose title, “A Higher Loyalty”, captures not only his grandiose view of himself, but his “Avenger” style approach to exercising a patriotic duty.  In the book, Comey describes the “crisis” perpetuated by President Trump and trumpets his own “justified” call for personal action: “It is also wrong to stand idly by, or worse, to stay silent when you know better, while a president brazenly seeks to undermine public confidence in law enforcement institutions that were established to keep our leaders in check“…. “The next president, no matter the party will surely emphasize values – truth, integrity, respect, and tolerance – in ways an American leader hasn’t needed to for more than forty years. The fire will make something good grow.” Again, there is no actual constitutional crisis here.  Furthermore, in this particular case it is far more likely Comey is attempting to vindicate his own suspect activities with a faux version of patriotism. This is a common ploy with some government employees and is often derided as “hiding behind the flag”.

Some of the current administration’s actions now characterized as constitutional crises are actually just the result of poor decision-making in previous administrations. The best example of this is former Senator Harry Reid’s ill-advised decision in 2013 to eliminate the filibuster in confirming judicial nominees. That decision enabled the Senate to confirm new federal judges with a simple majority (51 votes) as opposed to needing 60 votes to break a filibuster. It directly accounts for the torrid pace at which the Trump administration has been able to confirm conservative-minded judges to the bench and change the character of the Federal Judiciary. This may seem like a disaster for those who believe federal judges should have a generally progressive outlook, but it is certainly not a constitutional crisis.

As a side note, one would think the House Democrats might have learned a lesson from Reid’s risky decision. Instead, they are now considering an even riskier decision to impeach the President based on a politically conjured claim of “Obstruction”. This follows a two-year investigation in which a special prosecutor with a team of 17 lawyers was unable to gather enough credible evidence to build a provable legal case for obstruction. Such a precedent could backfire every bit as spectacularly as has Harry Reid’s filibuster decision if applied by Republicans to a future Democrat President.

There is no constitutional crisis today. No problem or conflict within the current or previous administration is devoid of a Constitutionally-derived legal precedent and/or a judicial path by which to proceed if the facts warrant. Policy decisions that are unpalatable to one party or the other, even if they are announced with bombastic rhetoric and considered by the opposition to be immoral (although not illegal), do not spawn a constitutional crisis. The incessant progressive outcry against the President’s policies and foibles is merely an expression of liberal distaste. Our Constitution remains a robust remedy against any true transgressions of its precepts. The sky is not falling. There is no constitutional crisis.

¹Article I, Section 10 of the Constitution says: “No state shall enter into any treaty, alliance, or confederation….”. That last word – confederation – can lead to an interpretation that the formation of the Confederacy in 1861 was in fact illegal. However, even this interpretation does not address the legality of secession by a single state.