During the last several years, we have often heard it said that the country is confronted with a grave constitutional crisis on one ground or another–an election is being stolen, funds appropriated by Congress for one purpose are being diverted to something else, the President has demanded the arrest and prosecution of his political opponents without evidence, and so on. There may be some constitutional crises lurking in the corrosive political atmosphere that exists in the country today, but not nearly as many as have been claimed.
The problem is that there is no generally accepted definition of “constitutional crisis.” There is general agreement that it is a violation of the separation of powers or some other requirement of the U.S. Constitution, but legal experts differ on more specific considerations. I would suggest that the violation must be something of immediate and substantial danger to our constitutional form of government in order to qualify as a crisis.
For instance, Trump’s diversion of billions of dollars appropriated by Congress for military purposes to fund the construction of his border wall was a fairly clear-cut violation of the Constitution. Yet, I would not classify it as a constitutional crisis because, while it infringed upon Congress’ power of the purse, it was a rather small portion of the overall Pentagon budget and did not threaten immediate defense calamity. Were it a substantially larger portion of the defense budget or were there an immediate security threat, it could move into crisis territory. The Supreme Court now has a case before it which will likely hold that the fund diversion was violative of the doctrine of separation of powers.
A more troubling violation of the separation of powers is Trump’s absolute refusal to provide documents that the House of Representatives has requested to carry out its oversight function. A president does have the right to withhold certain types of documents from Congress, but cannot properly refuse to turn over practically everything requested by a Congressional committee. It is a serious affront to the Constitution.
President Nixon tried to obstruct Congress during the Watergate hearings and eventually was brought to account. Congress has a right to request and receive information from a presidential administration that may disclose how the government is being handled or mishandled. That type of information is vital to the operation of our government and to completely stonewall Congress fits the description of a constitutional crisis.
Trump has taken steps toward creating a crisis of constitutional proportions in certain instances, but a crisis was averted for lack of follow-through. On numerous occasions Trump has, without supporting evidence, called upon the Attorney General to arrest, jail and/or prosecute his political enemies. That has all of the hallmarks of an authoritarian government. Had the Attorney General followed through, it would have created a bona fide constitutional crisis, but he did not.
More recently, Trump has been trying every trick in the book to try to show that he actually won the presidential election, despite incontrovertible evidence to the contrary. It is ugly, meritless and destructive of the governmental process but will not change the outcome. Were he to try to maintain his hold on office by force or underhanded means, it could amount to a constitutional crisis. But he will eventually concede to defeat and the nation will go about its business.
A constitutional crisis is much more easily identified in the rearview mirror. During the heat of the moment, we may think something is of crisis proportions, only to find after the fact that it was not. We do tend to remember the real constitutional crises–Truman seizing the steel mills to avert a strike in 1952, Nixon’s obstruction of Congress, Reagan’s Iran-Contra scandal in the mid-80s, Bush’s invasion of Iraq in 2003 (which caused me to change from Republican to independent). These were true crisis situations. My advice is to maintain perspective and not push the panic button too soon when things seem to be going awry in the government.