Are we in a “constitutional crisis”?
You have likely heard that question innumerable times over the past three months, followed by a discussion as to whether our president has actually, explicitly, openly violated a court order (make that a Supreme Court order). When a question is so pervasive, it is safe to assume that yes, we are already there.
When does the combo of authoritarian bullying, revenge seeking, stooge-nominating, retaliatory prosecuting, contemptuous litigating, and lawless usurpation of congressional power become a “crisis”? The word is defined by Merriam-Webster as “an unstable or crucial time or state of affairs in which a decisive change is impending…especially one with the distinct possibility of a highly undesirable outcome.” Frankly, we have been in that “crisis” since the first day of the Trump presidency.
When a Republican Congress allows the president to seize the power of the purse and does nothing, when the secretary of defense commits the worst breach of national security protocols in memory (and evidently doesn’t learn his lesson), or when Republicans refuse to reclaim the power to lay tariffs—despite a recession-inducing presidential trade war—the question is not if we are in a constitutional crisis, but just how bad it is.
For Kilmar Abrego Garcia, Rumeysa Ozturk, Mahmoud Khalil, Mohsen Mahdawi, and scores of others who are legally present in the United States have been snatched up, incarcerated (or are facing incarceration) in a foreign gulag, and are deprived of their right to contest their confinement and visa revocation, the “constitutional crisis” is well underway.
When the Supreme Court convenes “literally in the middle of the night” to stop the government from spiriting away Venezuelans in apparent contradiction of their instruction to give every individual a meaningful opportunity to oppose their deportation, the “constitutional crisis” has arrived.
Sen. Chris Van Hollen (D-Md.) knows a constitutional crisis. When asked explicitly whether we were in one on Meet the Press, he affirmed, “Yes, we are.” He had to fly down to El Salvador to see for himself Abrego Garcia’s condition, and upon his return, called out the president and his flacks for abject lies, even revealing the clumsy attempt to stage a scene suggesting he and Kilmar were tossing down margaritas on a tropical holiday.
When such steps are required to confirm whether or not a lawful American resident is alive, we know this is not only the least trustworthy White House in modern history, but one seemingly eager to foment a constitutional crisis. “They wanted to create this appearance that life was just lovely for Kilmar, which of course is a big, fat lie,” Van Hollen said. Calling out the White House’s baseless allegations that Abrego Garcia is a gang member and terrorist, Van Hollen declared, “…In other words, put up in court or shut up.”
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.” Conservative Judge J. Harvie Wilkinson of the 4th Circuit wrote. “Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
When not one, but two federal court judges edge toward finding the government in contempt, all the alarm bells should be going off.
For the thousands of government workers fired, the law firms and universities bullied, the millions of Americans harmed by illegal cuts and firings, the charitable organizations living under the cloud of a possible IRS dragnet, and the former Trump officials and assorted Trump nemeses targeted for persecution, the “constitutional crisis” is here. When Trump betrays Ukraine, cozies up to the evil aggressor Russia, wrecks the international trading system, stokes inflation, and sends us hurling into a recession, that crisis extends beyond the Constitution.
To borrow from Stephen Sondheim, there “won’t be trumpets or bolts of fire,” heralding that we have arrived at this moment. But let’s not muddy the waters with artificial paradigms. Let’s try this: Trump has undertaken an autocratic coup, dropping the pretense he is bound by law or obligated to act in the country’s best interest. He thinks he is a dictator (not just for a day, but for all the days since taking office), and he is trying his best to act like one.
Media, politicians, activists, and courts must stop waiting for a checkered flag to start responding. We need every person, every officeholder, and every facet of society to tell Trump: “NO.” No obeying in advance, No bullying, No court defiance, No executive overreach, No betrayal of allies, and No gaslighting. Then, voters must defeat any MAGA enablers, henchmen, and cowering politicians who are encouraging or complicit in these unprecedented assaults on our democracy.
And when Democrats (because, let’s be honest: there is no critical mass of Republicans prepared to return to democratic norms) regain power, they will need to rebuild government and erect a series of reforms (e.g., Supreme Court term limits or expansion; serious civil and criminal penalties for abrogating others’ constitutional rights or blocking congressionally appropriated funds; bright red lines on private citizens assuming governmental powers; complete divestiture of presidents’ business interests while in office) to secure our democracy.
Only after all that is accomplished can we mark the end of the multiple crises (constitutional, economic, diplomatic, moral) in which we find ourselves.
Until then, let’s stop arguing about when the crisis begins and start marshaling the will to end it.
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