America's Looming Constitutional Crisis

One of the first things you learn in law school is that it’s uniquely the province of the Judicial Branch to decide what the law is. That was the holding of Marbury v. Madison, the 1803 Supreme Court decision that established the principle of judicial review. It’s a foundation of the doctrine of separation of powers, embedded in the very structure of our Constitution, which holds that Congress enacts laws, the President ensures that the laws are faithfully executed, and the courts interpret the laws and determine their constitutionality. Instead of a king who wields all three types of power, we have three branches of government, each assigned its separate but equally important role. That structure was designed to establish checks and balances on the exercise of each type of power and prevent the loss of freedom that typically accompanies autocratic rule.

Our entire system of government has, for two-hundred-and-twenty-two years, depended on these principles. And while it has never been perfect, it has worked very well. (As is sometimes said, democracy is the worst form of government except for all the others.)

Today we are witnessing actions by the current Administration that would upset, and could even destroy, this constitutional balance. The President’s extraordinary, rapid-fire issuance of executive orders, if it stands, would have the effect of transferring power from Congress (Article 1 of the Constitution) and the Courts (Article III) to the Executive branch (Article II).

We can see the danger when the President signs an executive order contradicting the Constitution’s provision regarding birthright citizenship, something that could only be done by the Supreme Court (if it were a matter of constitutional interpretation), or a constitutional convention called to consider amending our founding document.

We can see it again in an executive order impounding Congressionally authorized funding, another “keeping men out of women’s sports,” and others by which the President single-handedly seeks to end decades of progress in the areas of gender and racial equality. The sports order even reads like a law one would normally expect to be proposed in Congress, debated, and submitted for a vote of the people’s representatives, but none of that has occurred.

Some of the other orders the President has signed likely would also empower executive officers to take actions more properly considered to be the province of the Legislative or Judicial Branches. And Republicans in Congress are allowing their own power to be hijacked with barely a hint of resistance.

To be sure, Presidents from both parties have used executive orders before, including at times when Congress has refused to act in support of their programs. But when Democrats have done that, Republicans have expressed loud objections, and nothing has even remotely resembled the speed with which this new Administration has issued such orders or the destructive, tearing-down nature of their reach.

News outlets have recently played recorded comments by some in the President’s orbit stating that we are living in a post-Constitutional era and that our system of government needs to be torn down. Even our new Vice President, a Yale-educated lawyer no doubt familiar with the Marbury precedent, has challenged the authority of the courts to rein in executive actions that judges determine to be unconstitutional, while his unelected counterpart working behind closed doors is calling for the impeachment of a judge who ruled against the Administration in the first round of legal skirmishes.

The brain trust that is producing the recent spate of orders has been dressing them up to look like they govern only the internal workings of the Executive Branch. In doing so, they argue that any attempt by Congress or the courts to interfere with them would itself violate the separation of powers doctrine. Not only is that argument legally unsound, but it also overlooks the serious harm the orders will inflict and already have inflicted on the lives, well-being, and livelihoods of millions of people both at home and abroad, in many cases implicating their constitutional and statutory rights.

As some commentators have noted, the White House has been “flooding the zone” with all of these rapidly issued orders, making them more difficult to challenge and likely hoping that, even if the courts stop some, others will slip through. But the most serious concern about the executive orders is their apparent design to unleash an Executive Branch that is not content to stay within its constitutionally assigned role. Rather, it seems determined to aggrandize Executive power by absorbing the powers of, and thereby overshadowing, the Legislative and Judicial Branches. And the hope may well be that, the more it does so, and the more often it does so, the more likely the American people will become accustomed to having all of the government’s powers consolidated in a single branch and, in fact, in a single person.

This is not just a fight over policy. Policies are meant to be discussed, debated, and decided by Congress, with input and often leadership from the President, and subject to the constraints of the Constitution as applied by the courts. Yet the new Administration seems to be doing at least two things that are inconsistent with this constitutionally prescribed process.

First, it is attempting to impose by fiat policies that they know have popular support and that, therefore, their constituents are unlikely to oppose notwithstanding the encroachment on the powers of the other branches. “The ends justify the means” seems to be the currency of this Republican-led Congress and the so-called conservative organizations, religious institutions, and billionaires that prop them up.

Second, the Administration is attempting to reshape government to bend to its will. It is doing so by punishing those who have opposed the President, and by tearing down or diminishing the institutions that stand in its way, including by installing heads of government agencies whose histories and philosophies run counter to the important, beneficial, and in some cases life-saving purposes for which those agencies were formed, and pressuring employees of those agencies to resign or be fired.

And now the Department of Justice, under new leadership loyal to the President, is interfering with the independence of the most highly regarded U.S. Attorneys’ Office in the country. Rather than comply with what they say is an inappropriate, politically motivated order to dismiss the prosecution of New York City’s mayor, the conservative Republican U.S. Attorney responsible for that office and several of the senior attorneys working with her have resigned, citing an unwillingness to violate their oaths of office.

The warning signals are all sounding to tell us that we are headed into the inferno of a constitutional crisis. Some commentators insist that we are already there. Since the majority in Congress is not acting to quench the political wildfire, it will be up to the courts, and ultimately the American people, to put it out.

The last time we approached such a crisis was during the Watergate era, but then we had a President who could be persuaded by his party’s Congressional leaders to resign rather than put America through the trauma of a President defying the will of Congress and a unanimous Supreme Court. Today we see little sign of any resistance in Congress, even while we hear the drumbeat of a White House that is signalling a willingness to reject court-ordered restraints. What happens if and when the Administration defies court orders aimed at maintaining the Constitution’s allocation of powers across the three branches may very well determine the continued viability of the United States of America as a free and democratic republic.