Many commentators are breathlessly reporting that America is on the brink of a constitutional crisis. They’re right, but not in the sense that they imagine.
Political scientists and law professors define a “constitutional crisis” as a standoff between government actors where the constitution or other governing law provides no answer. Some analysts see such a crisis in President Trump’s refusal to cooperate with the House of Representatives’ impeachment inquiry. But, of course, the House has the constitutional authority to impeach a president simply for refusing to cooperate. The real problem for those who wish to see the president removed from office is that the House may not have the political fortitude to do that. And even if the House does impeach, the Senate is unlikely to convict.
Trump’s refusal to cooperate, therefore, does not so much create a constitutional crisis as it does a political one. It is a crisis for Democrats precisely because the president is calling their bluff. “Go ahead,” he is essentially saying, “make my day.”
This, then, is partisan impasse and a potential political crisis — not a constitutional one. The true constitutional crisis consists of attacks on constitutional norms by those who pursue power over principle.
Let’s start with calls to undermine the independence of the judiciary by packing the Supreme Court. Having lost the battle to block the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, some Democrats now seek to limit their impact by adding more justices. Under our Constitution, the Senate decides whether (or not) to confirm Supreme Court nominees. Enlarging the size of the Court because the minority party didn’t get its way on a prior nomination would undermine the legitimacy of the Court. “If anything would make the court look partisan,” Justice Ruth Bader Ginsburg has said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
Attempts to eliminate the Electoral College system for electing the president are yet another attempt to undermine constitutional norms in order to achieve a specific political outcome. Democrats, who are upset that Republicans George W. Bush and Trump each won the presidency despite receiving fewer votes overall than their Democratic opponents, want to scrap our system for electing a president because they think this will enhance their electoral prospects.
Such short-sighted partisan angst over the Electoral College misses the point entirely. The Electoral College was established to protect us all from the tyranny of the majority. It was created before the existence of political parties and, therefore, was not designed to favor a particular side. To be sure, in any given election cycle, demographics may advantage one party or the other in the Electoral College. But any such advantage is always short-lived. Moreover, electoral disadvantages are always possible to overcome — just ask Bill Clinton, who smashed the Republicans’ supposed lock on the Electoral College in 1992, or Trump, who in 2016 broke through the Democrats predicted Blue Wall.
At the same time, attempts to slowly weaken other aspects of our delicate system of checks and balances have been brewing for several decades, stoked by politicians from both sides of the aisle.
A disregard for our constitutional separation of powers has allowed the administrative state to expand exponentially — creating a leviathan where unelected bureaucrats make, interpret, and enforce the law to the detriment of American civil liberties.
And trial lawyers deliberately blur the lines between the three branches of government by suing businesses for making legal products, effectively asking the courts to do Congress’s job and regulate greenhouse gas emissions, the manufacture of prescription drugs, and various lawful business practices.
Attacks on our constitutional structure may, in the short term, help politicians gain power and advance their policy objectives. But, in the long run, they undermine the rights of all Americans to live in a free society governed by the rule of law rather than by mob rule.
The real constitutional crisis, then, is not the political impasse of the moment, which will ultimately be resolved at the ballot box. The real crisis consists of attacks on American constitutional values, which find fertile ground in our collective civic ignorance, and the politics of expedience that exploit it.
Jennifer C. Braceras is the director of Independent Women’s Law Center.