It’s safe to assume that the phrase “constitutional crisis,” like the word “emoluments” eight years ago, is not something with which most Americans have an intimate, polished familiarity. This is not an indictment of public education or anything like that; nuanced considerations of outlier elements of the American system of government have generally been the purview of scholars rather than the public.
But the past few years have unfortunately necessitated that we engage in crash courses on legal esoterica. Over the past three weeks, that’s meant a pass/fail course on the limits of constitutional governance – a subject on which most Americans now profess to have an opinion.
The polling firm YouGov recently asked an unadorned question to that point: Did Americans agree that the “U.S. is in a constitutional crisis?” Most respondents, 54 percent of them, said it was. Democrats were more likely to hold that view — probably unsurprisingly, given the extent to which media outlets trusted by Democrats have recently offered ad hoc “Crisis 101” seminars through their coverage.
That said, even 3 in 10 Republicans think there is a constitutional crisis. Some may be responding to the same triggers as the Democrats: President Donald Trump’s eager rejection of Congress’s role in determining how the budget should be spent, his defiance of laws determining how government employees can be fired, his effort to categorically upend the naturalization process formally established in the 14th Amendment.
Independent reporting for Pine Bluff & Jefferson County since 1879.
Many Republicans, though, take an inverse view. The crisis isn’t that Trump and his administration are trying to consolidate power in the White House by sidestepping Congress or ignoring court orders. It’s that the courts are trying to prevent him from doing that. Examples of this assessment abound, from Vice President JD Vance’s social media feed to sympathetic cable-news commentary.
It’s a view that’s in keeping with polling assessing the perceived threat to democracy last year. Democrats were worried that Trump might reject the results of the 2024 presidential contest, as he did when he alleged that his 2020 loss was a function of (nonexistent) voter fraud. Republicans, meanwhile, often agreed that democracy was under threat … from voter fraud.
What’s striking about the current discussion of the crisis posed by Trump’s effort to consolidate power is how often it centers on the courts. The debate focuses on the extent to which Trump and his administration have complied or will comply with court orders, on the powers that exist which might force him to do so. That the answer is “not many” is clearly one reason that Trump is pushing boundaries in the way that he is.
That focus on the courts, though, ignores the constitutional tension that’s been roiling for years, a crisis that is by now so old that we can essentially declare a victor. There are supposed to be two checks on Trump’s power, of course: the courts and Congress. But Congress, particularly in the Trump era and almost entirely through the indifference of Republicans, has abdicated that role. The acute constitutional crisis of the past three weeks is an offshoot of the chronic crisis of congressional fealty to Donald Trump.
One irony in that development is that Republicans were relentless in insisting that Barack Obama’s presidency was unacceptably centered on executive power. Obama often relied on executive orders to effect (or try to effect) change in part because congressional Republicans were obstinate in blocking his legislative agenda. (Among the root causes of that obstruction was a spike in partisan hostility and the same detachment from reality on the right that aided Trump’s own rise to power.)
Trump’s first term in office began with a number of executive actions; Joe Biden’s term began with more still. In each case, the new presidents often presented their actions as checks on their predecessors, executive checks on executive power.
By the time Trump took office for the second time in January, though, a different point was being made: Trump was using the scale and scope of his executive actions to suggest that he, as chief executive, had the unconstrained power to do what he was doing. It’s likely, for example, that Trump broke out issues such as immigration into multiple orders in part because more orders implied more action and more authority.
Republicans in Congress have fallen all over themselves to approve of what Trump is doing – even when it diminishes their own power.
House Speaker Mike Johnson (R-Louisiana) told reporters on Tuesday that, instead of judges halting executive orders and Elon Musk’s efforts to rip apart government agencies, “the courts should take a step back and let this process play out.” Trump, via Musk, is ignoring how Congress determined that the federal budget should be spent. Johnson, who fought his own caucus to pass the bill that funds the government, is clapping along, more worried about his own political future than the power of his position and his chamber.
Again, this isn’t a new development. When Donald Trump was caught withholding aid to Ukraine during his first term in office (part of an effort to influence his 2020 reelection bid), he was impeached by the Democratic-controlled House. On the Senate side, though, only one Republican viewed this preview of Trump’s indifference to congressionally authorized spending as severe enough to warrant his removal from office. When Trump attempted to reject the results of the 2020 election and was impeached for a second time, a few more Republicans joined the cause but he still wasn’t convicted. Then the conservative-majority Supreme Court (a third of which was appointed by Trump) determined that Trump had immunity from criminal prosecution for certain elements of that effort.
Most of the Republicans who voted to hold Trump to account lost Republican primaries to Trump-backed candidates or resigned their positions, as Mike Johnson is well aware.
The aforementioned YouGov poll also included a question on whether respondents felt that the country had a robust system of checks and balances in place. On this point, any American who’d completed middle school should have an opinion; we learn at an early age that this system is a central element of American governance.
Only 4 in 10 respondents agreed that a robust system existed, including about one-third of both Democrats and independents. By contrast, a majority of Republicans felt that the system was robust.
A system of checks that doesn’t hold a popular Republican president in check is going to be seen as effective by Republicans. That apparently includes Republicans in Congress who took oaths committing themselves to a defense of the Constitution.
The crisis under discussion is not a new one. It is a crisis that has steadily grown more severe as Republicans sought to secure power for their party and Trump sought to secure power for himself. The extent to which Trump now views himself as existing outside of the constraints of accountability manifests in his indifference to legal rulings but is itself the crisis.
On Tuesday, Rep. Eli Crane (R-Arizona) announced that he was going to file articles of impeachment centered on restoring checks on power — at least as he saw it. The target of his announcement was U.S. District Judge Paul A. Engelmayer, a jurist who had the temerity to limit the access Elon Musk’s team had to sensitive government systems.
“Partisan judges abusing their positions,” Crane wrote on the social media platform Musk owns, “is a threat to democracy.”
A narrowly victorious Republican president doing so, on the other hand, is simply American democracy at work.