In a short few weeks, President Donald Trump has upended many core parts and functions of the U.S. government. He dismantled the U.S. Agency for International Development and fired thousands of government employees. He has also fired several inspectors general and board members of independent agencies.
Additionally, Trump’s administration has violated court orders to unfreeze federal funding. And Trump has issued an unprecedented number of executive orders, including one that aims to end the practice of birthright citizenship, something that is guaranteed by the plain text of the U.S. Constitution.
Legal experts have said that all of these actions and more are leading up to, or have already sparked, a constitutional crisis.
There is not one clear definition of what a constitutional crisis actually is. And, as constitutional law scholar Jeffrey Schmitt explains in an interview with Amy Lieberman, politics and society editor at The Conversation U.S., there is also no comparable historical example for Trump’s exercise of executive power.
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Why are some people calling what is currently underway a constitutional crisis?
I think legal experts are concerned that Trump is expanding executive power beyond anything we have known in American history. And as executive power continues to expand, we may eventually hit a tipping point that threatens the structure of the government, as laid out in the Constitution.
If the Constitution has one central feature, it is the separation of powers. The Constitution divides power between the states and the federal government, and federal power is divided between the three branches of government – the executive, judicial and legislative.
Now, Trump appears to be taking over Congress’ core powers, including taxing and spending. Typically, Congress passes a budget, and the president can sign or veto the bill. Once the budget is passed into law, the president cannot refuse to spend the allocated money.
There is some history to this. President Richard Nixon refused in the 1970s to spend money Congress had appropriated, and the U.S. Supreme Court then ordered the federal government to spend the money. Federal law now prohibits what’s called “impoundment.”
How is Trump challenging these laws now?
Trump is freezing spending on things he does not support politically, like foreign aid. He also is trying to place new conditions on the disbursement of federal funds as a way to control state and private institutions. For example, a recent letter from his administration threatens to withhold federal funding from schools that do not abandon DEI programs.
Trump has also fired top officials at independent agencies such as a member of the independent National Labor Relations Board, when federal law and Supreme Court precedent indicate that he has no constitutional authority to do so. He has also fired agency watchdogs without following legal requirements to give Congress 30 days notice. When he fired most USAID employees and froze the agency’s foreign aid payments, he shuttered an entire agency established by Congress.
And his firing of thousands of federal workers isn’t just about who works in government – cuts like this make an agency unable to perform its mission.
The federal courts are intervening in some cases, but they are blocking only a small fraction of the president’s actions.
Are there other times in history the country has come close to a constitutional crisis?
President Abraham Lincoln and President Franklin Delano Roosevelt both led the country during periods of constitutional change, and they both clashed with the Supreme Court.
Slavery in the federal territories was the constitutional crisis that precipitated the Civil War. This issue dominated politics throughout the 1850s because people thought it would determine the future of slavery as new states were admitted to the Union. When Congress was unable to reach an agreement, the Supreme Court held that it was unconstitutional for Congress to prohibit slavery in the territories in the infamous case of Dred Scott v. Sandford.
But opposition to the expansion of slavery was the unifying principle of the young Republican Party. So, during the election of 1860, Lincoln argued that Dred Scott was not binding on the country because it was not settled precedent. He acknowledged, though, that the court’s decisions are binding in the case before it.
When Lincoln campaigned for president in 1860, he promised to appoint judges who would overrule Dred Scott and to work with Congress to ban slavery in the territories. When Lincoln realized that constitutional change was necessary, he worked tirelessly to get the Thirteenth Amendment, which abolished slavery, ratified in 1865.
Franklin Roosevelt also worked within the constitutional system to expand the role of the federal government in the New Deal, a series of domestic public works programs in the 1930s. When the Supreme Court ruled against early New Deal programs, FDR complained that the justices were old and out of touch.
So Roosevelt in 1937 proposed packing the Supreme Court with new justices in a transparent attempt to push the court into accepting his broad reading of federal power. This proposed change never became law, but the Supreme Court changed its views on federal power at roughly the same time, ending the crisis. The country overwhelmingly supported the New Deal’s expansion of federal power in several national elections.
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How does today’s situation involving Trump differ?
Unlike Lincoln or Roosevelt, Trump is trying to seize the powers of Congress and unilaterally transform the federal government. Roosevelt worked with Congress to pass legislation and eventually convince the Supreme Court to accept his views. And while Lincoln rejected the court’s proslavery reading of the Constitution, Trump may be rejecting its central feature – the structural balance of power.
Can the country resolve this crisis?
Aside from Trump deciding to change course, there is not much that can be done. Courts can issue orders, but they do not have a military and cannot easily enforce them.
Congress has the power to remove the president, via impeachment. As we learned during Trump’s first term, however, impeachment is not easy.
If the president decides to ignore the courts – and Congress continues to do nothing – the final constitutional check on Trump’s power will be the next federal election.
