The US crisis is political, not constitutional

The Constitution provides instructions for how to resolve the crises generated by executive overreach, but partisanship thwarts the remedy.

There’s a lot of talk lately about the US being in a constitutional crisis. The Trump administration’s refusal to comply with the Supreme Court ruling in the Abrego Garcia case has institutional observers sounding the alarms. But is the crisis constitutional when the Constitution contains the solution?

The crisis that is created when a president refuses to comply with a court order has a clear resolution, and it’s written right there in the Constitution. The Constitution tells us that when an executive overreaches its power or fails to comply with the courts, the appropriate resolution is impeachment and removal from office.

But, it turns out, the US has never done this before. Despite four previous presidential impeachments, half of which were imposed on the current president, Congress has never used its constitutionally provided powers to remove a president from office. Arguably, Donald Trump was ineligible to hold office after he incited an insurrection and was convicted of felonies. But again, Congress is the institution charged with enforcing this check on power, and it didn’t.

Many scholars define a constitutional crisis as a conflict that the Constitution cannot resolve. For example, if we look at other instances often referred to as “constitutional crises,” they were generally resolved by violence, threat of violence, or legislative clarification. Take the following five historical examples of constitutional crises.

• 1832 - South Carolina challenged federal government supremacy and did not want to comply with federal action. President Jackson resolved the crisis by threatening violence against the state.

• In 1841, when William Henry Harrison died 30 days after being inaugurated and no one was quite sure if the vice president would automatically step into the role or be a temporary placeholder, Congress passed a resolution clarifying things.

• In the 1860s, when southern states seceded over irreconcilable differences related to human enslavement, the issue was resolved through the deadliest war in US history.

• In 1876, when there was a conflict over the counting of electoral college votes, the issue was resolved in a rather corrupt bargain, struck by Congress that ended southern reconstruction and ushered in 90 years of authoritarian Jim Crow rule in the American south.

• In 1973 when president Richard Nixon did not want to comply with Supreme Court rulings and damning evidence about his involvement in crimes that led to his contributed to his electoral victory in 1972, the issue was resolved when Congress credibly threatened impeachment and Nixon resigned.

In every case except Nixon‘s, the Constitution did not contain enough detail to help political actors resolve the conflict. These constitutional crises were resolved through violence, threat of violence, or through statutes imposed by Congress.

Image of the floor of the US Senate during the second impeachment trial of Donald Trump in 2021. Created by Eric Hayne, Creative Commons License.

But can you imagine such a solution for the current crisis? What law could Congress pass to resolve the problems of the Trump administration defying courts and exceeding authority? These laws already exist.

The constitution tells us how to resolve the problems of a president who has engaged in illegal action, overreached their executive powers, or failed to heed direct judicial action. The framers aimed to prevent monarch-style tyranny, which they were very familiar with because they had just survived a bloody revolutionary war to overthrow a monarch, by using the legislative and judicial branch powers to thwart a king. The answers to the current problems are in the Constitution. The problem is that the remedies cannot be applied because politics do not allow them.

Therefore, the problem is not a constitutional crisis; rather, it’s a political crisis. When the Constitution contains the legal guidance for how to resolve a conflict, but that guidance cannot be enacted because of partisan alignments, then the crisis is political, not constitutional.

The reason Donald Trump was able to run for office again, despite inciting an insurrection and being convicted of felonies, is that his co-partisans decided his crimes did not rise to a level of seriousness that meritted his restraint.

The reason the Trump administration can eliminate an agency of government created by congressional statute without the consent of Congress, is because the people who hold the power in Congress to enforce the law are unwilling to use their authority against their co-partisan.

The reason the Senate failed to remove President Trump from office and restrict him from seeking office again after inciting a violent insurrection to overthrow a valid election, is because an insufficient number of his co-partisans viewed the act through partisan-colored lenses—43 Senators voted to acquit Trump of the charges. Only six Republicans voted to convict Trump; three remain in office today.

The Constitution is not failing to protect America from a president overreaching his power—the Republican Party is. This claim is not partisan. I don’t make this statement out of animus toward the Republican Party. To the contrary, research shows that democracies need vital, competitive political parties to keep power in check and representatives accountable to the public. However, the Republican Party has become dominated by Trump’s populist electoral coalition, where loyalty to Trump supercedes loyalty to the Constitution or democratic governance.

The US Constitution is imperfect, but it has clear instructions for resolving the current crisis. What the Framers who wrote the Constitution failed to account for is partisanship. Not only did parties not formally exist at the time, but they arrogantly believed they were creating a system of government, so diffuse in its power distribution, that political parties would never form. They were wrong.

The growing political crisis in the US is a product of an organizing document that doesn’t meet the realities of the time—not because it can’t, but because those with power won’t use it.