Many folks, in the media and throughout American society, have been speculating about whether the nation is moving toward a “constitutional crisis” in the coming months or years. Because I get a lot of questions from students, lawyers, non-law faculty members and others these days that seem to reflect a desire to locate modern times in historical constitutional context, in my column this week I thought I would share several of the questions—and the answers I am inclined to provide—for a wider audience.
What exactly is a constitutional crisis, and are we moving in that direction?
Although I aware of no consensus textbook definition, to me a constitutional crisis occurs when our constitutional framework and norms are being violated to the point that resolving disputes peacefully and conducting government business even moderately effectively is impossible. The Civil War was one such crisis. Watergate and the resignation of President Richard Nixon were not. The process there was messy, but the constitutional system worked as designed—a vigilant and constitutionally protected press along with a conscientious Congress prevented a corrupt president from continuing to flout fundamental laws. The 2000 election had the potential to be one—and many feel the Supreme Court’s intervention was inappropriate—but the relatively orderly aftermath allayed fears of a true crisis.
We are at an unusual constitutional moment to be sure—think of how long it has been since one political party had firm control of all four major organs of the federal government (the presidency, the senate, the house and the Supreme Court)—but we are not to my mind in or on the verge of a constitutional crisis. People need to pay attention to and weigh in on what is happening in government today, but they also need to be careful to focus foremost on what actions are taking place, rather than on what various people might speculate about.
What is the worst-case scenario? The president defies an unfavorable ruling from the Supreme Court? Or something else?
That is one potential crisis scenario, but remember that President Trump has not threatened to defy any court order—about immigration or emoluments or anything else—and indeed is currently rewriting executive orders to accommodate judicial rulings, even rulings with which he clearly disagrees. In theory, other crisis scenarios could include severe crackdowns on free speech—which, like an independent judiciary, is key to our constitutional structure. Or, depending on what happens in upcoming elections, an even more contentious relationship between Congress and the president than we saw during the Obama years—one in which basic tasks like filling Supreme Court vacancies go unperformed year after year. But none of that has happened. And even if it did, we’d have to evaluate the institutions and processes we built into our constitutional structure for dealing with conflicts like these before we could conclude a crisis has arisen.
You mentioned that individuals should pay attention to and weigh in on things. How can cities and states combat any overreach by the federal government that some people fear?
State and local governments can be places of political organization, opposition, and expression. States and localities can enact laws that demonstrate better policy approaches than the federal government is pursuing to win over the hearts and minds of the body politic. In many instances state and local entities can refuse to actively help in federal law implementation. And they can sometimes act as plaintiffs to file court cases challenging federal power.
But there are limits. Though they can resist improper federal commandeering, state and local government employees may not obstruct or in any way interfere with federal law enforcement activity. And their ability to bring suit to contest federal policies is confined by so-called justiciability rules. For example, one problematic aspect of the Ninth Circuit’s decision upholding the block on President Trump’s original executive order on entry into the U.S. was the determination that the state of Washington had “standing” to sue on behalf of foreigners, insofar as public universities in the state benefited from having visitors from the covered countries. But a state can’t sue merely because it is “affected” by something the feds do, just as a Middle Eastern restaurant owner in Seattle can’t sue simply because she might lose business from the immigration ban. The standing of a state to sue in this setting is much more constrained and complicated than the Ninth Circuit’s analysis would suggest. (Of course, the Ninth Circuit had limited time to issue its ruling, so it may be excused for not writing an opinion as thorough as would be generated in a normal case.)
President Trump was certainly critical of that Ninth Circuit ruling. To the extent that courts are a very important part of our system of divided powers, when a president criticizes the court system and individual judges as thoroughly as Trump has, is there a chilling effect on the judiciary?
Presidents do criticize judicial rulings. Recall President Obama’s negative description of the Supreme Court’s Citizens United decision during the 2010 State of the Union address, which led Justice Samuel Alito, who was in the audience, to mutter the words “Not true.”
I think—and said at the time—that President Obama’s remarks were not out of bounds. But what makes President Trump’s comments potentially problematic is that some of them can be construed not merely to decry the merits of particular rulings, but to delegitimize the judges themselves. For example, his tweet about “so-called judges” on the Ninth Circuit attacks not just the recent ruling, but the very authority of the judges to decide cases. So too did his campaign criticism of Judge Curiel—the federal district court judge who presided over litigation involving Trump University—whom Candidate Trump suggested could not be impartial because of his Latino origin, given Trump’s policy positions on Mexico.
To be fair, let me add that many top constitutional analysts across the ideological spectrum think at least some key judicial rulings against President Trump have been significantly flawed, even if many of these experts are muted in their defense of the Trump administration’s legal stance because they find his policies unwise or abhorrent.
I hope that no judge lets personal attacks affect a judicial decision in either direction. I will say the current Supreme Court would not be easily bullied. The justices are a confident group united in, if little else, their belief that the Court should be involved in the nation’s biggest decisions and that its rulings should be heeded.
Speaking of the Supreme Court and judicial independence, is that a topic that Supreme Court nominee Neil Gorsuch should be asked about at his upcoming confirmation hearing?
Yes, but it’s hard to imagine that he would assert anything less than a full-throated defense of complete judicial independence. The bigger question is whether fuzzy-thinking notions of independence will somehow prevent the Senate from getting Judge Gorsuch to share his views on specific cases that have come before the Court in the past. Hearing such views is indispensable to getting a meaningful sense of where he may move the nation’s jurisprudence. Platitudes about judicial philosophy mean little until you get someone to apply them to particular disputes that have divided justices in recent decades.
Many Senators may say that while they may properly ask a nominee about his general approach to judging and interpretation, they should not ask for detailed views about actual cases, because doing so might force the nominee to prejudge issues that may come before him later.
This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so even though they have spoken publicly on these matters in deciding the earlier cases themselves. Surely no one thinks they are conflicted merely because they have opined on an issue in prior statements or decisions.
If Senators cannot unearth and examine Judge Gorsuch’s specific views about a dozen or so key cases decided over the past few generations on topics such as abortion rights, the meaning of the Second Amendment, the scope of Congressional power over voting equality, etc., we ought not waste time on any hearing.