Is the US facing a constitutional crisis?

29 Dec 2017



For those of us who follow American politics closely, the term ‘constitutional crisis’ will be all too familiar. The probe into Russia's interference in the US election has prompted an immense amount of scrutiny of the White House’s occupants, and a great deal of hand-wringing about the reversibility of the current state of US politics. But what is a constitutional crisis, and is America currently in one?


There are multiple definitions of ‘constitutional crisis’. American constitutional law scholar Keith Whittington has defined it simply as “the failure, or strong risk of failure, of a constitution to perform its central functions”. While this is vague, it can be understood as a situation in which there is a governing crisis that the document outlining a country’s governing principles has no answer for.


Whittington’s definition lends itself to a hearty amount of debate over which events, past and present, qualify as a constitutional crisis. Generally accepted ones are Edward VIII's abdication in 1936, and the secession of the seven southern states preceding the American civil war.


The two main types of crises outlined in Whittington’s paper describe situations in which the constitution has no rule or procedure outlined to resolve a political problem (operational), and when political actors decide not to adhere to the constitution (crisis of fidelity).


The recent back and forth between the courts and Trump regarding the travel ban, and various other executive orders, appear as if they could be crises, but going by these definitions, wouldn’t be deemed so unless the President decided not to abide by the courts’ ruling.


That doesn’t stop pundits from throwing the phrase around, though. The American legal scholar Jack Balkin has expanded on the issue, suggesting that what these people mean is the disagreements between the executive and judicial branches. These disputes are usually resolved by political means, or in the courts – something he argues is the function of a constitution in the first place. Alternatively, Balkin suggests that pundits are talking about “constitutional hardball”: flouting unwritten norms that were more so a political than legal requirement (for example, the non-release of tax returns or holding up of a Supreme Court seat).


In terms of the current situation, the appointment of Special Counsel Robert Mueller (who is leading the investigation into Russian hacking) itself isn’t a constitutional crisis, and in fact, suggests that the US Constitution is working quite well. What would be a crisis is if Trump were to fire him – something only the head of the judicial branch of government (Rod Rosenstein, at the moment) should be able to do. Some have suggested that Trump will fire Rosenstein and put in his place someone willing to fire Mueller. This would be a grey area, for whilst the President is technically allowed to do so, it would spark an almighty backlash.


Balkin has suggested instead that the US is in a state of ‘constitutional rot’. He argues that this can only happen in democratic republics and is a long-term state in which democratic norms, checks and balances are eroded. This can be done by political actors not acting in good faith with regards to fair political competition and exercising power, also by undermining their constituents’ trust and continually playing constitutional hardball – something the current administration is guilty of.


American politics is currently in a state of flux, stuck between people who want to stick to norms and unwritten rules and those who want to burn the rulebook altogether so they can achieve their ideological goals. With the Republicans dominating both the legislative and executive branches of government, this has led to a whole lot of constitutional hardball.


What this means is that while there is no constitutional crisis currently, there is indeed a risk of one - a risk exacerbated by the President’s impulsive behaviour.


What could solve this problem? Who knows. If Mueller were to return a recommendation of impeachment, the right wing would revolt. If not, the left wing wouldn’t be too happy either. Perhaps politics merely needs to be re-set to zero, the only question remaining now is ‘how?’.





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