What is a Constitutional Crisis?

"It is a constitutional crisis when our constitution and our politics come apart." More particularly, a constitutional crisis is when (1) a constitution stops working, or (2) a government stops following it.

We should remember the U.S. Constitution was written to resolve a constitutional crisis that developed under the previous Articles of Confederation, which served as the country's first constitution immediately following the American Revolution. The articles had failed to create an effective government and the process of amending the articles was impossibly burdensome. The drafters of the Constitution threw out and replaced the Articles of Confederation, thus solving the crisis. In some ways, we owe our 250-year history of democracy to a constitutional crisis.

Many MAGA supporters today feel similarly to how Americans must have felt under the Articles of Confederation -- they believe that our government is no longer effective and that the Constitution, at least as it has been interpreted for most of its history, makes effective government in the modern world impossible. The Constitution, they complain, has been interpreted to give too much power to a federal bureaucracy when the power should be given to an elected executive. Congress, they say, is paralyzed by politics. Unelected judges have seized too much power. Though Trump and his MAGA supporters pay patriotic lip service to the Constitution, they clearly believe we are in a constitutional crisis caused by the Constitution's failure and that the only way past this crisis is to increase the power of the presidency in ways that are plainly unconstitutional, at least until Trump has successfully dismantled the regulatory state and recast the roles of Congress and the judiciary.

Trump's critics, on the other hand, describe the constitutional crisis as the second kind of crisis. It is the Trump administration acting outside the rules of the Constitution. By refusing to spend money as allocated by Congress, eliminating departments, running the government through executive order instead of legislation, and circumventing courts, Trump has plunged the country into a constitutional crisis.

Whether it is because the Constitution stopped working or because the Trump administration won't obey it, there is a general consensus that we are already in the midst of a constitutional crisis and have been for quite some time.

What is interesting, then, is that so few people say we are already in a constitutional crisis and say instead that we are at the verge of one. Those who make that claim are generally speaking about one specific element of the second kind of constitutional crisis - the executive branch openly defying a direct order from the judicial branch, or more specifically, the President openly defying a direct order from the Supreme Court. But there is a problem in this specific use of the term "constitutional crisis." The flaw is that just isn't the way our judiciary works in practice.

The Supreme Court has a longstanding practice of deciding cases on the narrowest ground possible. The Court also has a longstanding practice of deferring to the other branches of government whenever possible. And while less open about it, the Court also has a longstanding practice of ducking controversial issues by finding some technical problem in how the case came before them and deciding based on that technical issue. The Supreme Court will occasionally decide big issues directly, such as the abortion decision Dobbs v. Jackson Women's Health Organization, but those cases are the exceptions that prove the rule.

This is exactly what the Supreme Court has been doing since Trump was reelected and is what the Court is likely to continue to do as long as possible. The Court, for example, has announced that the government must provide everyone with notice and an opportunity to be heard before being deported under the Alien Enemies Act but no one has been brought back from El Salvador. Furthermore, those who are still here challenging their deportation are likely to be deported after their hearing despite the obvious inapplicability of the Alien Enemies Act. The Court said the government acted unlawfully in removing Kilmar Abrego Garcia but instead of demanding his return, the Court issued an ambiguous order parsing the words "facilitate" and "effectuate." And though district courts have issued dozens of orders in cases involving DOGE, the courts have allowed the Trump administration to stall and appeal, usually without making any sincere efforts to comply with the order. There is a clear pattern here. The judiciary continues to assert its authority to be the final interpreter of the law but cannot or will not stop the Trump administration's unconstitutional actions. In other words, even if our system of checks and balances is collapsing, the Court is likely to hide and deny that reality even as it happens.

Those waiting for the Supreme Court to put Trump in a position where he openly defies the Court before saying we are in a constitutional crisis will be waiting long past the point where that term stops being useful.