Hold Your Tongue: This Isn't a 'Constitutional Crisis'
Calling Donald Trump’s firing of FBI Director James Comey a constitutional crisis is an exercise in crying wolf. At first it was just a few Democratic senators and representatives reacting in the moment, which called for disagreement but not detailed rebuttal. Now, after reflection, some serious constitutional experts are still using the phrase “constitutional crisis” to describe Tuesday’s events.
That’s not just analytically mistaken but also potentially dangerous, especially in the Trump era. We need to save the concept of constitutional crisis for situations where there’s a fundamental breakdown in the structure of government.
The reason is simple: A true breakdown calls for decisive action to resolve it. Such action may itself be perceived as unconstitutional. And the last thing we need is for President Trump to step into the breach and violate the Constitution on the theory that he’s saving us from a constitutional crisis.
Let’s start with the definition of a constitutional crisis. Rather than making one up to fit current circumstances, I looked at the way I’ve defined it before in this column -- generally with respect to crises happening abroad.
My definition has two elements. First, for a constitutional crisis to exist, a country must face “a situation in which its constitutional principles offer no clear, definitive answer to a pressing problem of governance.”
Second, powerful political actors “have to signal that they are ready to press one course of action to its limits. Meanwhile, other comparably powerful actors have to be prepared to push the other way.”
I’m pleased (and a little relieved) to see that I’ve used this definition pretty consistently. I think it captures what makes such a situation distinctively constitutional, namely that there is no unambiguous answer about what the constitution requires, and therefore there is debate about the constitution itself.
And I think this definition also captures what makes such a situation truly a crisis, namely that real world, significant political actors are prepared to act on their competing interpretations of the constitution.
The Comey firing just doesn’t fit. No one thinks that the Constitution would prohibit the firing. There’s no lack of clarity about what the constitutional principles say, because they recognize executive authority to fire the FBI director.
And there’s no crisis, because there aren’t competing political actors taking mutually exclusive positions about what should happen next, constitutionally speaking.
Democrats (and some Republicans) are rightly upset that Trump has fired the head of the agency that was investigating him, an obvious and highly troubling conflict of interest. But the responses they propose, including the appointment of a special counsel and/or a select congressional committee, aren’t constitutionally incompatible with Trump’s action.
This isn’t quibbling. The stakes are exceptionally high. And the dangers of imprecision in the name of rhetorical emphasis are especially great where Trump is involved.
When a true constitutional crisis hits, and both sides assert legitimate authority, the system needs to find some form of resolution. In the worst-case scenario, that can lead to civil unrest. In the best-case scenario, one institution takes decisive action, and the rest of the system accepts that resolution as legitimate, resolving the crisis.
The resolving action almost always has some features that could be characterized as unconstitutional. The granddaddy of all American constitutional crises was precipitated by Southern secession in 1861. In one particularly striking sub-crisis, President Abraham Lincoln suspended the writ of habeas corpus, citing Article I, Section 9 of the Constitution, which says that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The trouble was that the suspension clause is in Article I, which delineates Congress’s power, and Lincoln acted without waiting for Congress to convene. Chief Justice of the United States Roger Taney, sitting as a district judge, ruled that Lincoln’s act was unconstitutional in a case called Ex Parte Merryman, ordering the release of a civilian, John Merryman, who had been dragged from his bed and detained in Fort McHenry.
Lincoln’s general refused to release Merryman, precipitating the crisis. Taney wrote in his memorable opinion that “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.”
With no alternative, Taney ordered a copy of his opinion sent to Lincoln. He wrote that “It will then remain for that high officer, in fulfillment of his constitutional obligation, to ‘take care that the laws be faithfully executed’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”
Lincoln resolved the constitutional crisis by doing nothing -- an act that he justified in an address to Congress a month later by saying he had no choice but to act to save the union. Critics then and since have argued that Lincoln was acting as a dictator. Some think both that he was a dictator and that he was justified anyway.
This is exactly the script we don’t want Trump to follow. The notion of a constitutional crisis implies a conflict between Trump and other parts of the government in which Trump would have the option of seeking decisive action that he would unquestionably claim to be justified even if it was unconstitutional.
So let’s save “constitutional crisis” for when it’s accurate and we have no choice but to use it. And then let’s hope the system is strong enough to resist unconstitutional efforts to resolve it.
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Noah Feldman at email@example.com
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