Trump did not fulfill an order from a judge. One of the consequences is this: teachers and experts were called to determine whether or not the country is in constitutional crisis and cannot respond accurately
What is a constitutional crisis – and are the US going through one right now?
Analysis of Zachary B. WolfCNN
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The subject of the moment is the deportations, but the issue has been a constant in Donald Trump’s Presidencies: Is the president to act according to the Constitution?
In his first term, the issue came over repeatedly: when he tried to nullify an FBI investigation; When your administration ignored subpoenas; and when he tried to stay in office after losing the elections.
Now, the Trump administration has invoked war powers to deport alleged gang members, mostly Venezuelans, for controversial arrest in El Salvador.
When a federal judge ordered the aircraft carrying the deported to turn half, the message was: “Oopsie … Too Late”, along with an emoji crying and laughing.
At least that was the message of El Salvador President Nayib Bukele, an ally of Trump, in Elon Musk’s X.
Bukele and the White House account have now published a video of the deported, who will be housed in El Salvador for a year, apparently parading to prison, with his face and head shaved.
Trump’s lawyers were more serious, arguing in court that the people in question had already been deported when district judge James Boasberg issued his decision. CNN tried to recreate the exact chronology.
But the fact is that a judge gave an order and the Trump administration did not fulfill it, which seems to open a new era in the matter of whether the US is, in fact, in a constitutional crisis.
What is a constitutional crisis?
There is no definite definition or a clear agreement on when the US actually enters a constitutional crisis.
Generally speaking, the United States system of government is based on the idea that three branches of the government, on an equal footing, exert controls and balances among themselves.
“People usually use the term ‘constitutional crisis’ to describe periods when government institutions are clearly in conflict,” Sanford Levinson teachers were written in 2009 from the University of Texas, and Yale Jack Balkin.
But they argued that there has been a “promiscuous use of the term.”
“The mere existence of a conflict, even deep, cannot be the definition of crisis,” they wrote. “Government institutions are always in conflict.”
If a branch fails to completely honor the checks, the system is out of control.
“For me, real problems arise when there is an open and voluntary challenge to a court order,” said Elie Honig, CNN’s senior legal analyst, on Monday’s CNN Max program. “People use the expression ‘constitutional crisis’.
Did the Trump administration ignore the court?
Trump administration is not currently saying that it has the authority to simply challenge the court, but it seems to be flirting with the idea.
“A district court judge cannot wage the expulsion of foreign terrorists to foreign soil, just as it cannot direct the Air Force One movement,” CNN’s White House Stephen Miller’s counselor Stephen Miller told a controversial interview on his program ‘The Arena’ on Monday.
More debate is expected about the details of when the order was issued and whether the administration could or should have turned around the planes.
What is supposed to happen?
If the administration disagrees with a court, it appears, said Elizabeth Goitein, senior director of the Centro Brennan Freedom and National Security Program for the court.
“The president’s solution is to appeal, perhaps present an emergency appeal to the Court of Appeal, but not to challenge the order,” said Elizabeth Goitein, also at CNN Max. “This is what the controls and balances mean. It means that the president cannot be the judge of his own actions.”
Why is this not a constitutional crisis?
Berkeley’s law professor John Yoo, who worked in the administration of George W. Bush and has a wide view of the executive authority, wrote on Monday that he does not think the US is currently in a constitutional crisis. Presidents are condemned to conflict with courts and Congress, Yoo argued.
By email, I asked Yoo what the term meant to him.
“I confess that I do not have a clear definition of constitutional crisis,” he said, adding that he has clear ideas about what is not a constitutional crisis.
“It can not be just a disagreement about the meaning of the Constitution. It can not just be a struggle between the branches of the government.
Yoo, a currently invited professor at the University of Texas in Austin, has a different view and told me that the allegations of a constitutional crisis these days “is mainly an example of the hyperpartisan policies of our time and not so much a real attack on the Constitution”.
“Constitutional Hard Game”
Levinson, who was co-author of a 2009 article trying to define a constitutional crisis, told me during the first Trump administration that the crisis is incorporated into the Constitution.
“It is the constitution itself that constitutes a crisis, because it establishes this Byzantine system of separation of powers that we often call ‘brakes and counterweights’, which becomes a ping-pong game without a defined end,” Levinson told me in 2019.
A very different congress for Trump 2.0
I contacted Levinson to know how things have changed in the last six years.
Even though the US is not in the midst of a constitutional crisis, they are trapped in an era of “constitutional hardball, which is the desire to take advantage of all legal possibilities or legal techniques to try to score points for the political party itself,” says Levinson. This is certainly a culture that we are living.
However, a major change took place in Congress at the beginning of Trump 2.0, argues Levinson, pointing to the “full and complete collapse of Congress as a true institution of governance.”
Even the Republicans who, six years ago, could have opposed Trump in some questions “became what I think is really a personality worship.”
The way these republicans act if or when Trump actively ignores the courts will be fundamental.
Senate minority leader Chuck Schumer told the New York Times that the question of whether Trump challenges the courts is what wakes up to “two or three in the morning.”
“I believe that in this matter, Republican senators will oppose,” Schumer said about a handful of his colleagues across the corridor. “About five or six said they will publicly work to defend the courts and to defend the law if Trump tries to break it.
This would be an example of legislators to reaffirm the balance of powers.
